# Petition for Writ of Certiorari — Spahn v. Wittman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1385%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 522 U.S. 951 ## Text 4. DE PTY e. 1 ~ FILED (| y 97-437 SEP 10 1997 No. —————_ ; as OrFitc Ul tHE CLERK IN THE Supreme Court of the United States OCTOBER TERM, 1997 BETTY SPAHN, Sister and Guardian of Edna M. Folz, Petitioner, Y. MARK WITTMAN, Guardian ad Litem for Edna M. Folz, Respondent. Petition for Writ of Certiorari to the Wisconsin Supreme Court PETITION FOR WRIT OF CERTIORARI ROBYN S. SHAPIRO * MIRIAM S. FLEMING MICHAEL, BEST & FRIEDRICH LLP 100 East Wisconsin Avenue Suite 3300 Milwaukee, Wisconsin 53202 (414) 271-6560 * Counsel of Record Attorneys for Petitioner WILSON - EPES PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001 *v os , QUESTION PRESENTED Edna Folz is a 73 year-old woman suffering through the end stages of very advanced Alzheimer’s dementia. She is bedridden in a fetal position; incontinent of bowel and bladder; unable to eat, move, or even follow simple commands; and she is without prospect for mprovement. She is kept alive by a surgically implanted gastrostomy tube that artificially provides her with fluid and nutrition. Edna’s health care providers, her guardian ad litem, and her family members supported her legal guardian’s good faith determination that treatment termination would be in Edna’s best interests. Yet, the Wisconsin Supreme Court held that Betty Spahn, Edna’s sister and legal guardian, may not authorize withdrawal of Edna’s treat- ment, under the following rule: “If that person is not in a persistent vegetative state, this court has determined that, as a matter of law, it is not in the best interests of the ward to withdraw life-sustaining treatment, includ- ing a feeding tube, unless the ward has executed an advance directive or other statement clearly indicating his or her desires.” The question presented is: Whether, consistent with equal protection of the law and liberty interests under the Fourteenth Amendment to the U S. Constitution, a state may allow guardians to author- ize withdrawal of life-sustaining treatment from incompe- tent persons in a persistent vegetative state regardless of whether the incompetent has executed a clear prior treat- ment directive, but prohibit guardians from exercising this liberty interest on behalf of all other incompetent persons unless the incompetent has executed a clear prior treat- ment directive. ii LIST OF PARTIES In addition to the parties listed in the caption of the case, the following are additional parties: Howard B. Eisenberg, Esq. 1103 West Wisconsin Avenue P.O. Box 1881 Milwaukee, WI 53201 (414) 288-1768 The Supreme Court of Wisconsin appointed Attorney Howard B. Eisenberg as Respondent-Designate to appear and provide briefing to the Court in support of the decision of the Circuit Court of Wood County, Wisconsin. Edna M. Folz c/o Marshfield Nursing & Rehabilitation Center 814 West 14th Street Marshfield, Wisconsin 54449 Ms. Folz is the incompetent for whom the petitioner is guardian. TABLE OF CONTENTS CONSTITUTIONAL AND STATUTORY PROVI- SIONS INVOLVED |... . REASONS FOR GRANTING THE PETITION . I. THE DECISION BELOW CONFLICTS WITH DECISIONS OF OTHER STATE SUPREME COURTS AND WITH VARIOUS STATE ca, LEN ES SiS Leas re II. THE DECISION BELOW CONFLICTS WITH DECISIONS OF THIS COURT AND VIO- LATES THE EQUAL PROTECTION CLAUSE. Ill. THIS CASE PRESENTS PUBLIC POLICY ISSUES OF NATIONAL IMPORTANCE ___. CONCLUSION APPENDIX: In re Edna M.F. v. Howard B. Eisenberg, No. 95- 2719, Wisconsin Supreme Court Opinion ___. (iii) 10 21 la iv TABLE OF CONTENTS—Continued Wisconsin Supreme Court November 20, 1996 Or- der to realign appellate parties .............................. Wisconsin Supreme Court September 19, 1996 Order appointing respondent-designate .............. Wisconsin Supreme Court April 16, 1996 Order granting Petition to Bypass Wisconsin Court of DST. a sstessssistsctcascsesinictrsrnsesdintentibiniasssnantncsiotes Notice of Appeal to Wisconsin Court of Appeals.... Circuit Court, Wood County, Wisconsin, August 22, 1995 Order denying Petition for Order Confirm- ing Guardian’s Decision to Withdraw Artificial I a a nal Circuit Court, Wood County, Wisconsin, April 17, 1995 Memorandum Decision denying Petition for Order Confirming Guardian’s Decision to With- oe Me Ry eee Petition for Order Confirming Guardian’s Decision to Withdraw Artificial Nutrition .......................... Excerpt: Guardian’s “Brief in Support of Petition for Order Confirming Guardian’s Decision to Withdraw Artificial Nutrition” ...................0........ Excerpts: Guardian’s “Appellant Brief’ to Wis- I TIS Br PIII so ccisecis i cess sncemencemntntortnencnnece 40a v TABLE OF AUTHORITIES Cases Page Barber v. Superior Court, 147 Cal. App. 3d 1006, 195 Cal, Rptr. 484 (1983) 0 10, 18 Cleburne v. Cleburne Living Center, 473 U.S. 432 bo FE eS REMOTE ae ey 19 Cruzan v. Director, Missouri Department of Health, GOT UG. BOE (1DBG) nanan cnceceeccereee es 9, 10, 17 Foody v. Manchester Mem. Hosp., 40 Conn. Supp. 127, 482 A.2d 718 (1984) 0 9,10 In re Barry, 445 So. 2d 365 (Fla. App. 2d Dist. ROED comcscsanenscesiolcaaten ante ee ae 9 In re C.A., 236 Ill, App, 3d 594, 603 N.E.2d 1171 LGUUMD sctleihicisbehiddivtintinuaceaiatiesie ee aay 14 In re Colyer, 99 Wash. 2d 114, 660 P.2d 738 (RINE witteescssetacesidennaliiiiaan ln es aa Rae: g aD me. Tee ae ee 11 In re Grant, 109 Wash. 2d 545, 747 P.2d 445 (1987), modified 757 P.2d 534 ee 18, 14 In re Jane Doe, 262 Ga. 389, 418 S.E,2d 3 (1992)... 12 In re L. W., 167 Wis. 2d 53, 482 N.W.2d 60 (1992) passim In re L.H.R., 258 Ga. 439, 321 S.E.2d 716 (1984) .... 10 In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. de- nied, 429 U.S. 922 (1976) 0 10, 11 In re Roche, 296 N.J. Super. 583, 687 A.2d 349 ng, TR RA ARs See neers ead oP neo a 9 In re Rosebush, 195 Mich. App. 675, 491 N.W.2d Se OE ites teased ae ee ater) wr, 14 In re Severns, 425 A.2d 156 (Del. Ch. 1980)... 9 In re Torres, 357 N.W.2d 332 (Minn. 1984) 9 Jackson v. Indiana, 406 U.S. 715 (| ae 17, 18 John F. Kennedy Memorial Hospital, Inc. v Bludworth, 452 So. 2d 921 (Fla. a 9 Mack v. Mack, 329 Md. 188, 618 A.2d 744 (1998)... 10 Mills v. Rogers, 457 U.S. 291 a 17 Parham v. J.R., 442 U.S. 584 I iin eae 17 vi TABLE OF AUTHORITIES—Continued Page Skinner v. Oklahoma, 316 U.S. 585 (1942) ............ 17, 19 Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 CRIT UD cscncssctochoiansnctessslecietbahadenceddmantnaasaiadiamie tices 10 Thompson v. Oklahoma, 487 U.S. 815 (1988) .......... 18 Union Pacific R. Co. v. Botsford, 141 U.S. 250 5 RRA Renee ARON OW Leia S82 ni AE, OP 17 Youngberg v. Romeo, 457 U.S. 307 (1982) ............. 17 Constitution, Statutes and Other Authority Be To | RRR RER amenenes | kr ee ene 1 Md. Code Ann. [Health-Gen.] § 5-601 (1996) ........... passim Md. Code Ann. [Health-Gen.] § 5-605 (1996) ........... passim On, BROW. Bbak, © EC CRIB D savcccesctscececsanssvncsesonsconss passim President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Be- havioral Research, Deciding to Forego Life- Sustaining Treatment (19838) ...............-......---2-200-+- 20, 21 U.S. Constitution, Amendment V .............................-- passim U.S. Constitution, Amendment XIV, Section 1.......... passim OPINIONS BELOW The opinion of the Wisconsin Supreme Court (Appen. infra, 1a-34a) is reported at 210 Wis. 2d 558, 563 N.W.2d 485 (1997). This matter was heard by the Wisconsin Supreme Court on bypass from the circuit court. Accord- ingly, there is no appellate court opinion. The opinion of the Wood County Circuit Court is not reported. How- ever, the Memorandum Decision and Order of the Wood County Circuit Court are reprinted in the Appendix infra (Appen. 42a-44a and 40a-41a, respectively ). JURISDICTION On April 17, 1995, the Wood County Circuit Court issued its Memorandum Decision and ruled that it would not confirm Edna M. Folz’s guardian’s decision to with- draw artificial nutrition from her ward. Appen, infra 42a-44a. On August 22, 1995, the Wood County Circuit Court entered its Order confirming its Memorandum Deci- sion. Appen. infra 40a-4la. On April 16, 1997, the Wisconsin Supreme Court granted a petition to bypass the Wisconsin Court of Appeals. Appen. infra 37a. On June 12, 1997, the Wisconsin Supreme Court affirmed the opinion of the Wood County Circuit Court. Appen. infra la-34a. Throughout these proceedings, petitioner asserted, inter alia, that Edna Folz has a liberty interest under the Due Process Clause of the United States Constitution to be free from unwanted medical treatment and that to deny her guardian the ability to relieve Edna Folz from the provision of artificial nutrition because Edna Folz is not in a persistent vegetative state, while permitting guard- ians of persistently vegetative incompetents to do so, vio- lates the United States Constitution. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Constitution of the United States provides in perti- nent part: vn at 2 AMENDMENT V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. AMENDMENT XIV, SECTION 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due proc- ess of law; nor deny to any person within its juris- diction the equal protection of the laws. MD. CODE ANN. § 5-601 HEALTH-GENERAL Maryland Code Annotated Section 5-601 provides in pertinent part: Definitions. , “ ‘ ‘ (c) Best interest—‘“Best interest” means that the benefits to the individual resulting from a treatment outweigh the burdens to the individual resulting from that treatment, taking into account: (1) The effect of the treatment on the physi- cal, emotional, and cognitive functions of the individual; (2) The degree of physical pain or discom- fort caused to the individual by the treatment. the withholding or withdrawal of the treatment; Baas heat 3 (3) The degree to which the individual’s medical condition, the treatment, or the with- holding or withdrawal of treatment result in a severe and continuing impairment of the dignity of the individual by subjecting the individual to the condition of extreme humiliation and de- pendency; (4) The effect of the treatment on the life expectancy of the individual; (5) The prognosis of the individual for re- covery, with and without the treatment; (6) The risks, side effects, and benefits of the treatment or withholding or withdrawal of the treatment; and (7) The religious beliefs and basic values of the individual receiving treatment, to the extent these may assist the decision maker in deter- mining best interest. MD. CODE ANN. § 5-605 SURROGATE DECISION MAKING Maryland Code Annotated section 5-605 provides in pertinent part: (a) Surrogate authorization. * * * * (2) The following individuals or groups, in the specified order of priority, may make deci- sions about health care for a person who has not been certified to be incapable of making an informed decision and who has not appointed a health care agent in accordance with this sub- title. Individuals in a particular class may be consulted to make a decision only if all individ- uals in the next higher class are unavailable: (1) A guardian for the patient, if one has been appointed; (ii) The patient’s spouse: (iii) An adult child of the patient; 4 (iv) a parent of the patient; (v) An adult brother or sister of the patient. * * * * (c) Standards for surrogates—(1) Any person authorized to make health care decisions for another under this section shall base those decisions on the wishes of the patient and, if the wishes of the patient are unknown or unclear, on the patient’s best interest. OR. REV. STAT. § 127.635 Oregon Revised Statutes section 127.635 provides in pertinent part: 127.635. Withdrawal of life-sustaining procedures; conditions; selection of health care representative in certain cases; required consultation. (1) Life-sustaining procedures as defined in ORS 127.505 which would otherwise be applied to an incapable principal who does not have an appointed health care representative or applica- ble valid advance directive may be withheld or withdrawn in accordance with subsections (2) and (3) of this section if the principal has been medically confirmed to be in one of the following conditions: (a) A terminal condition; (b) Permanently unconscious; (c) A condition in which administration of life-sustaining procedures would not ben- efit the principal’s medical condition and would cause permanent and severe pain; and (d) The person has a progressive illness that will be fatal and is in an advanced stage, the person is consistently and per- manently unable to communicate by any means, swallow food and water safely, care for the person’s self and recognize the per- son’s family and other people, and it is very | Ne 5 unlikely that the person’s condition wil] substantially improve. STATEMENT A. Edna Folz’s Condition Edna Folz is a 73 year-old woman suffering through the end stages of very advanced Alzheimer’s dementia, which was diagnosed in 1979. She lies in bed in a fetal position, hips and knees flexed, arms up to her chest, unable voluntarily to change body position, and in need of constant repositioning by others to avoid skin break- down. She is incontinent of bowel and bladder, unable to feed herself and unable to follow even simple com- mands, such as closing her eyes or looking when her name is called. Although Edna exhibits general non-specific responses to mildly noxious stimuli, she shows no mean- ingful attempt to withdraw from such stimuli. Edna has had a permanent, surgically implanted feed- ing tube since December 1988. While she was not capable of making treatment decisions when the feeding tube was inserted, the manifestations of her Alzheimer’s disease were much more limited then than they were at the time this matter was before the trial court and than they are today. At the time her feeding tube was inserted, Edna appreciated her environment to some degree, she recog- nized family members, and, to a limited extent, she was able to enjoy social interaction. Since Alzheimer’s dementia js a progressive, degenera- tive disease of the cerebral cortex, for which there is no known cure, there is no chance that Edna will recover to a cognitive state or even to a minimal level of social or human functioning. Rather, her mental and physical con- ditions will continue to deteriorate. Currently, Edna’s condition resembles a persistent vegetative State, but it does not meet the strict definition of that condition because She does exhibit minimal response to stimulation and can feel pain. Prior to her illness, Edna was a vibrant and independent woman, an accomplished journalist, an involved com- 6 munity volunteer, and a devout Roman Catholic. She was and is dearly loved by her family and friends, who feel that she “would not want to be kept alive” in her current condition. The belief of family members that Edna would reject the treatment she currently receives is based on their knowledge of her values and previous life style, as well as a statement she made, at the age of 42 or 43, that she would rather die of cancer than lose her mind. Edna has had an especially close relationship with her sister, Betty Spahn, the petitioner herein. B. Proceedings in the Lower Courts In October 1994, faced with Edna’s deteriorating and hopeless condition, Edna’s sister and court appointed guardian, Betty Spahn, determined that Edna would not have wanted continued artificial nutrition. Betty therefore asked the nursing facility in which Edna resided (and continues to reside) to discontinue her artificial feeding. The facility’s ethics committee met to consider Betty’s request and advised that it would be ethically appropriate to discontinue the artificial feeding, but required that the facility secure written consent for this discontinuation from all of Edna’s potential heirs. All of Edna’s family mem- bers did consent to the withdrawal of artificial nutrition, but one niece refused to memorialize her assent in writing. The nursing facility, therefore, insisted on 2 court order for the withdrawal of Edna’s treatment. On January 12, 1995, Betty filed a petition in the Wood County, Wisconsin Circuit Court seeking an Order confirming her authority, as guardian, to direct the with- drawal of artificial nutrition from Edna. Appen. infra 45a-50a. On January 13, 1995, the court appointed Mark E. Wittman as guardian ad litem to represent Edna’s best interests. Both the guardian and the guardian ad litem submitted briefs to the court in which they argued that in the case of In re L.W., 167 Wis. 2d 53, 482 N.W.2d 60 (1992), : : . eee 7 the Wisconsin Supreme Court held that an individual’s right to refuse unwanted medical treatment emanates from both common law rights and the personal liberties pro- tected by the Fourteenth Amendment to the federal con- stitution. [R. 8-1 to 8-8; R. 11-1 to 11-7] The parties also agreed that In re L.W., squarely holds that this right extends to incompetent as well as competent individuals: that it includes the right to refuse or withdraw artificial nutrition and hydration; and that where the incompetent is iN a persistent vegetative state, it may be exercised by a guardian, even where there are no clear statements of what the patient’s treatment preferences would be, via application of a best interests analysis. [R. 8-3 to 8-5, 8-7; R. 11-2 to 11-7] Although the L.W. decision expressly protects the treat- ment termination rights only of incompetents in a per- sistent vegetative state, the guardian argued that excluding all other incompetents from this protection would be un- reasonable, illogical and violative of the Constitution. Appen. infra 5la-52a. [R. 8-7] The guardian therefore asked the trial court to apply the principles and rationale stated in L.W., via either a best interests or a substituted judgment approach, to affirm Edna’s guardian’s request to terminate her artificial nutrition. The guardian ad litem agreed that termination of artificial nutrition would he in Edna’s best interests. After hearings held on March 22, 1995 and April 11, 1995, at which the Wood County Circuit Court heard testimony and oral argument, the trial court concluded that because Edna was not in a persistent vegetative state, it did not have authority under existing Wisconsin law to authorize her treatment termination. The Court issued a Memorandum Decision on April 17, 1997 and entered its final order denying the Guardian’s petition on August 22, 1997. Appen. infra 42a-44a; 40a-41a. On September 29, 1995, the Guardian appealed the trial court’s ruling to the Wisconsin Court of Appeals and 8 also filed a petition to bypass the Court of Appeals with the Wisconsin Supreme Court. Appen. infra 38a-39a. In appellate court briefs, the guardian and guardian ad litem again argued that Edna has a fundamental liberty interest under the Fourteenth Amendment to be free from un- wanted life sustaining medical treatment, including artifi- cial nutrition and hydration, and that her guardian should be able to exercise that right on her behalf under either a substituted judgment or best interests analysis. [Guard- ian’s Appellant’s Brief to Wisconsin Court of Appeals at pp. 17-23, 29-45, 52-65; Guardian ad Litem’s Reply Brief to Wisconsin Court of Appeals at pp. 6-19] The Guardian again stressed that to permit incompetent pa- tients in a persistent vegetative state to exercise their liberty interest to refuse treatment, while prohibiting in- competent patients who are not in a persistent vegetative state from doing so, violates the non-persistently vegetative patients’ federal constitutional rights. Appen. infra 53a- 55a. [Guardian’s Appellant Brief to Wiscsonsin Court of Appeals at pp. 52-66] On April 16, 1995, the Wisconsin Supreme Court granted the petition to bypass, indicating that the Court of Appeals briefing could stand as the briefing to the state supreme court. Appen. infra 37a. In light of the fact that the brief of neither the guardian, nor the guardian ad litem, supported the trial court’s decision, on September 19, 1996, the Wisconsin Supreme Court sua sponte or- dered the appointment of a respondent-designate, Howard B. Eisenberg, to appear on behalf of the circuit court’s de- cision. Appen. infra 36a. On November 20, 1996, the Wisconsin Supreme Court ordered that the parties be realigned to show the guardian ad litem as an appellant, along with the guardian, versus the respondent-designate. The parties subsequently submitted additional briefing and oral argument to the Wisconsin Supreme Court. Appen. infra 35a. On June 12, 1997, the Wisconsin Supreme Court af- firmed the trial court’s decision. Appen. infra 1a-34a. In 9 its ruling, the Wisconsin Supreme Court affirmed its posi- tion that incompetents have a constitutionally protected right to refuse unwanted medical treatment, including nu- trition and hydration, and that this right may be exercised by the incompentent’s guardian utilizing a best interests analysis. Appen. infra 5a-7a. Where the incompetent is not in a persistent vegetative state, however, the Wisconsin court held that, “as a matter of law, it is not in the best interests of the ward to withdraw life-sustaining treatment, including a feeding tube, unless the ward has executed an advance directive or other statement clearly indicating his or her desires.” Appen. infra 8a-9a. The Wisconsin Su- preme Court’s rationale for drawing a bright line rule separating incompetents in a persistent vegetative state from incompetents who are not persistently vegetative was its fear of falling down a confusing “slippery slope” toward legalized euthansia. Appen. infra 9a-10a. Accordingly, the court found that the state’s interest in the preservation of life could not be outweighed by the constitutional rights of a non-vegetative incompetent person in circumstances such as those endured by Edna. Appen. infra 10a-11a. REASONS FOR GRANTING THE PETITION Before and since this Court’s decision in Cruzan v. Di- rector, Missouri Department of Health, 497 U.S. 261 (1990), numerous state courts have confronted the pro- foundly challenging issues surrounding treatment decision- making for severely and permanently ill, incompetent pa- tients. Various state courts, including the Wisconsin Supreme Court, have concluded that the right to refuse unwanted treatment applies to both competent and in- competent individuals,’ and that the “best interests” stand- 1 See In re Conroy, 98 N.J. 321, 359, 486 A.2d 1209, 1229 (1985): In re Roche, 296 N.J. Super. 583, 588, 687 A.2d 349, 351 (1996): Foody v. Manchester Mem. Hosp., 40 Conn. Supp. 127, 133, 482 A.2d 713, 718 (1984); In re Torres, 357 N.W. 2d 332, 339 (Minn. 1984) ; John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So. 2d 921, 923 (Fla. 1984); In re Barry, 445 So. 2d 365, 370 (Fla. App. 2d Dist. 1984) ; In re Colyer, 99 Wash. 2d 114, 124, 660 P.2d 738, 744 (1983) ; In re Severns, 425 A.2d 156, 159 (Del. Ch. 1980) ; 10 ard should be applied when deciding whether to withdraw treatment from an incompetent patient if evidence of the patient’s preferences is lacking.” Application of the best interests standard in treatment termination decisions for incompetent patients who have not previously documented their health care preferences is an issue not addressed in Cruzan, not uniformly ad- dressed in state law, and of profound importance to count- less patients and their loved ones nationwide. The deci- sion of the Wisconsin Supreme Court, which precludes a best interests determination to withhold or withdraw treat- ment for incompetent persons who are not persistently vegetative, directly conflicts with state supreme court de- cisions and/or legislation in New Jersey, Arizona, Wash- ington, Georgia, Maryland and Oregon, and it deprives incompetents of their substantive due process liberty in- terestS and their constitutional right to equal protection. The sharp conflict in state law throughout the country, Wisconsin’s improper disparate treatment of incompetent persons, and the wrenching urgency of providing clear and equitable guidance to those entrusted with decision making for incompetent and seriously ill individuals, warrants im- mediate review by this Court. I. THE DECISION BELOW CONFLICTS WITH DECI- SIONS OF OTHER STATE SUPREME COURTS AND WITH VARIOUS STATE STATUTES In In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985), the New Jersey Supreme Court held that life-sustaining Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 736, 744, 370 N.E.2d 417, 423, 427 (1977); In re Quinlan, 70 N.J. 10, 41, 355 A.2d 647, 664, cert. denied, 429 U.S. 922 (1976); Rasmussen v. Fleming, 154 Ariz. 207, 219, 741 P.2d 674, 686 (1987) ; In re L.H.R., 253 Ga. 439, 440, 445, 321 S.E.2d 716, 718, 722 (1984) ; Mack v. Mack, 329 Md. 188, 211, 618 A.2d 744, 756 (1993); In re L.W., 167 Wis. 2d 53, 73-74, 482 N.W.2d 60, 67 (1992). 2 Rasmussen, 154 Ariz. at 222, 741 P.2d at 689 (1987); Barber v. Superior Court, 147 Cal. App. 3d 1006, 1021, 195 Cal. Rptr. 484, 493 (1983); Foody, 40 Conn. Supp. at 139, 482 A.2d at 721 (1984); In re L.W., 167 Wis. 2d at 74-76, 482 N.W.2d at 68 (1992). ——————eEEEEE—————EEEE 11 treatment may be withheld or withdrawn from an incompe- tent patient who is not in a persistent vegetative state if either of two “best interest” tests—a limited or pure ob- jective test—is satisfied. Conroy, 98 N.J. at 387, 486 A.2d at 1244. The New Jersey Supreme Court’s holding reversed the state court appellate decision, which had held that the right to terminate life-sustaining treatment based on a guardian’s judgment was limited to incurable and terminally ill patients who are brain dead, irreversibly com- atose, or vegetative. See In re Conroy, 190 N.J. Super. 453, 469, 464 A.2d 303, 312 (1983). The Conroy Court explicitly acknowledged that its holding broadened the applicability of principles it had enunciated in its previous Quinlan decision, which dealt with treatment decision- making for a specific category of patients—i.e., those in a persistent vegetative state. Conroy, 98 N.J. at 358-362, 486 A.2d at 1228-39 citing In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 (1976). The New Jersey Court held: Under ‘the limited-objective test, life-sustaining treat- ment may be withheld or withdrawn from a patient in Claire Conroy’s situation [i.e. confined to bed, incontinent, unable to speak, suffering with arterio- sclerotic heart disease, hypertension, diabetes mel- litus, and an eye problem, but able to interact with her environment in some limited ways and not in a chronic vegetative state] when there is some trust- worthy evidence that the patient would have refused the treatment, and the decision maker is satisfied that it is clear that the burdens of the patient’s continued life with the treatment outweigh the benefits of that life for him. ~ Conroy, 98 N.J. at 365, 486 A.2d at 1232. The Court added that if there is no evidence that the patient would have declined the treatment: life-sustaining treatment may still be withheld or withdrawn if a pure-objective test is satisfied. Under that test, . . . the net burdens of the patient’s life with the treatment should clearly and markedly out- 12 weigh the benefits that the patient derives from life. Further, the recurring, unavoidable and severe pain of the patient’s life with the treatment should be such that the effect of administering life-sustaining treat- ment would be inhumane. Id., 98 N.J. at 366, 486 A.2d at 1232. The New Jersey Supreme Court explicitly acknowledged that “for some incompetent patients it might be impossible to be clearly satisfied as to the patient’s intent either to accept or reject the life-sustaining treatment.” Jd. at 363, 486 A.2d at 1231. Nonetheless, the New Jersey Court refused “to foreclose the possibility of humane actions, which may involve termination of life-sustaining treatment, for persons who never clearly expressed their desires about life-sustaining treatment but who are now suffering a prolonged and painful death.” Jd. More recently, the Supreme Court of Georgia reaffirmed that the right to refuse treatment is not lost because of the inability or failure to have left prior treatment directives. In In re Jane Doe, 262 Ga. 389, 391, 418 S.E.2d 3, 5 (1992), the Georgia court upheld the authority of parents to exercise the right to refuse treatment on behalf of their child, on the grounds that parents’ “natural bonds of af- fection” lead them “to act in the best interests of their children.” IJd., 262 Ga. at 392, n.6, 415 S.E.2d 3, n.6. The Court expressly rejected arguments that this right to refuse treatment should be limited to circumstances where the incompetent patient is in a persistent vegetative state, asserting, “while medical technology and society’s under- standing of death and dying continue to evolve and change, we cannot mandate a single static formula for deciding when deescalation of medical treatment may be appropri- ate. Rather, we endorse the view that medical decision making for incompetent patients is most often best left to the patient’s family (or other designated proxy) and the medical community.” 7d. In Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987), the Arizona Supreme Court held that: a) the “best OO 13 interests” standard should be used to guide treatment de- cisionmaking where no reliable evidence of the incompe- tent patient’s intent exists; and b) under the best interests standard, the surrogate decisionmaker “assesses what medi- cal treatment would be in the patent’s best interests as determined by such objective criteria as relief from suf- fering, preservation or restoration of functioning, and quality and extent of sustained life. . . . ‘An accurate as- sessment will encompass consideration of the satisfaction of present desires, the opportunities for future satisfactions, and the possibility of developing or regaining the capacity for self-determination.’” Jd., 154 Ariz. at 222, 741 P.2d at 689 [citations omitted]. The patient’s guardian in Ras- mussen sought to terminate the patient’s artificial nutrition and to secure “do not resuscitate” and “do not hospitalize” orders for the patient. /d., 154 A.2d at 211, 741 P.2d at 678. While Ms. Rasmussen was persistently vegetative, the Arizona court did not limit the application of the best interests criteria to persons in a persistent vegetative state. Rather, it recognized that its criteria would govern future cases, and it clearly delineated best interest factors which apply to conditions other than persistent vegetative state. Id., 154 Ariz. at 222, 224, 741 P.2d at 689. The Washington Supreme Court, in In re Grant, 109 Wash. 2d 545, 747 P.2d 445 (1987), modified 757 P.2d 534 (1988), adopted similar factors for consideration in making a best interests treatment termination determina- tion. The Washington court held that in evaluating whether an incompetent patient’s best interests would be furthered by treatment termination, decisionmakers are to consider: the patient’s present level of physical, sensory, emo- tional, and cognitive functioning; the degree of physi- cal pain resulting from the medical condition, treat- ment, and termination of the treatment, respectively; the degree of humiliation, dependence, and loss of dignity probably resulting from the condition and treatment; the life expectancy and prognosis for re- 14 covery with and without treatment . . . and the risks, side effects, and benefits of each of those options. Grant at 568, 747 P.2d at 457, quoting Conroy, 98 N.J. at 397, 486 A.2d at 1231. The Grant decision does not require the patient to be in a persistent vegetative state for treatment termination based on best interests. Rather, it permits the incompetent individual’s guardian to apply the best interests analysis where the “patient is in an advanced stage of a terminal and incurable illness and is suffering severe and permanent mental and physical deterioration.” Grant, 109 Wash. 2d at 568, 747, P.2d at 457.° In addition, Maryland and Oregon have enacted legis- lation that allows an incapacitated patient’s surrogate de- cisionmaker to direct the withdrawal or withholding of life-sustaining treatment, on the basis of the patient’s best interests, in conditions other than persistent vegetative state. Maryland’s Health Care Decision Act accommo- dates “best interest” treatment decisions for incompetents by surrogates where the wishes of the patient are unclear or unknown, with “best interest” defined as follows: (e) Best interest.—“Best interest” means that the benefits to the individual resulting from a treatment outweigh the burdens to the individual resulting from that treatment, taking into account: 3 Other lower state courts, absent direction from this Court and their own higher state courts, have also concluded that the best interests standard for treatment decision making is appropriately applied in circumstances not limited to persistent vegetative state. See In re C.A., 236 Ill. App. 3d 594, 603 N.E.2d 1171 (1992) (uphold- ing guardian’s right to authorize “do not resuscitate” order on basis of “best interests” standard for infant who was not in a persistent vegetative state, who suffered from interventricular hemorrhages, was HIV infected and developmentally delayed and had a terminal bowel infection, but was fully conscious and aware of her surround- ings); In re Rosebush, 195 Mich. App. 675, 491 N.W.2d 633 (1992) (holding that the best interests approach should govern decisions to withdraw life-sustaining measures from never competent patients and applying the guidelines set forth Jn re Grant, supra). 15 (1) The effect of the treatment on the physical. emotional, and cognitive functions of the indi- vidual; (2) The degree of physical pain or discomfort caused to the individual by the treatment, or the withholding or withdrawal of the treatment; (3) The degree to which the individual’s med- ical condition, the treatment, or the withholding or withdrawal of treatment result in a severe and continuing impairment of the dignity of the individual by subjecting the individual to the condition of extreme humiliation and depend- ency; (4) The effect of the treatment on the life ex- pectancy of the individual; (5) The prognosis of the individual for recov- ery, with and without the treatment; (6) The risks, side effects, and benefits of the treatment or withholding or withdrawal of the treatment; and (7) The religious beliefs and basic values of the individual receiving treatment, to the extent these may assist the decision maker in deter- mining best interest. Md. Code Ann., [Health-Gen.] § 5-601(e) (1996). See also Md. Code Ann., [Health-Gen.] §§ 5-605(a) (2) (1)- (v), 5-605(c). Similarly, Oregon’s statutory law allows surrogates to direct the withholding or withdrawing of life sustaining treatment not only for patients in persistent vegetative states, but for those who have a terminal condition, those for whom life-sustaining procedures would provide no benefit but would cause permanent and severe pain, and those who have a “fatal, advanced progressive illness” such that the illness: will be fatal and is in an advanced stage, [and] the person is consistently and permanently unable to communicate by any means, swallow food and water safely, care for the person’s self and recognize the 16 person’s family and other people, and it is very un- likely that the person’s condition will substantially improve. Or. Rev. Stat. § 127.635(d) (1996). See Or. Rev. Stat. § 127.635(1)(a)-(d) (1996). In contrast to the foregoing court decisions and state statutes, the Wisconsin Supreme Court held that, “as a matter of law”, if an incompetent person is not in a per- sistent vegetative state, the withdrawal of life-sustaining treatment, including a feeding tube, can only be in the incompetent’s best interests if the incompetent “has exe- cuted an advance directive or other statement clearly in- dicating his or her desires.” Appen. infra 17a. This overly rigid definition of the “best interests” standard guts its intended utility in guiding treatment decisionmaking for incompetent patients by foreclosing reference to objec- tive, societally shared criteria when the patient’s prefer- ences are not discernable. Moreover, it expressly deprives patients who have always been incompetent, and who could not have executed an advance directive or other clear indication of their desires, of the right to be free from unwanted treatment. Under the Wisconsin Supreme Court’s “best interests” approach, for a patient who is not persistently vegetative, the interest in maintaining physiological life as long as medically possible always trumps other interests. Consid- eration of factors such as relief of pain and discomfort, prospects for restored functioning, and the intrusiveness of the treatment is precluded. Yet, as recognized by the courts of other states, case-by-case analysis of these fac- tors is exactly what is envisioned by the best interests analysis, because requiring some individuals to remain in hopeless conditions of irreversible illness and pain not only violates their best interests, it is inhumane and vio- lative of their federal constitutional substantive due process rights. The conflict of authority among jurisdictions indicates that the lower courts and state legislatures are engaged 17 in a profound struggle to come to a full understanding of the precedent established by this Court in Cruzan. On account of these conflicting state court holdings and laws, protection of incompetent persons’ constitutional liberty interests to be free from unwanted treatment depends upon the state in which they are found. Resolution of this con- flict requires immediate review by this Court. II. THE DECISION BELOW CONFLICTS WITH DECI- SIONS OF THIS COURT AND VIOLATES THE EQUAL PROTECTION CLAUSE This Court has long protected the individual’s right to “the possession and control of his own person.” Union Pacific R. Co. v. Botsford, 141 U.S. 250 (1891).* With specific respect to the right to control one’s course of med- ical treatment, in Cruzan v. Director, Missouri Depart- ment of Health, 497 U.S. 261 (1990), this Court stated that: “[t]he principle that a competent person has a con- stitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior deci- sions.” Cruzan at 278. Moreover, the holdings of this Court support the no- tion that an individual’s incompetence does not diminish this liberty interest. See Youngberg v. Romeo, 457 US. 307, 315-316, 319 (1982) (holding that severely re- tarded minor’s liberty interests in safety, freedom from bodily restraint, and reasonable training survive involun- tary commitment); Parham v. J.R., 442 U.S. 584, 600 (1979) (recognizing a child’s substantial liberty interest in not being confined unnecessarily for medical treat- ment); Jackson v. Indiana, 406 U.S. 715, 730, 738 *See also Skinner v. Oklahoma, 316 U.S. 535, 541-43 (1942) (prohibiting state from controlling, by sterilization, which convicts might reproduce) ; Rochin v. California, 342 U.S. 165, 172 (1952): Schmerber v. California, 384 U.S. 757, 772 (1966) (“The integrity of an individual’s person is a cherished value of our society.”) ; Mills v. Rogers, 457 U.S. 291, 294 n.4 (1982) (“[T]he right to refuse any medical treatment emerged from the doctrines of trespass and battery, which were applied to unauthorized touchings by a physician.”’). 18 (1972) (holding that Indiana could not violate due process and equal protection rights of a mentally retarded deaf mute by committing him for an indefinite amount of time simply because he was incompetent to stand trial on the criminal charges filed against him). For incompetent individuals, the question is not whether such liberty in- terests exist; it is how such interests are to be protected. As this Court explained in Thompson v. Oklahoma, 487 U.S. 815, 825 n.23 (1988), “Children, the insane, and those who are irreversibly ill with loss of brain function, for instance, all retain ‘rights’ to be sure, but often such rights are only meaningful as they are exercised by agents acting with the best interests of their principals in mind.” The Wisconsin Supreme Court has ruled that all incom- petent persons who are not in a persistent vegetative state simply lose their constitutionally protected liberty interest in making choices about their medical treatment, except in those rare cases where they have left prior directives.® Guardians and loved ones of these Wisconsin individuals are now precluded from making a treatment decision, to- gether with health care providers, that would refiect the patient’s interests more closely and serve the patient’s best interests more effectively than would a purely techno- logical decision to do whatever is possible. Yet, incom- petents in Wisconsin who are in a persistent vegetative state and never left prior directives, never made clear treatment preference statements, never exhibited conduct upon which a substituted judgment could be made, or never were competent, retain their right to refuse or cease unwanted life-sustaining medical treatment, as exercised by their guardians on the basis of their best interests. See L.W., 167 Wis. 2d at 74-76, 78, 482 N.W.2d at 67-68, 70. 5 One court advanced the following in explaining why only so few persons have executed advance directives: “The typically human characteristics of procrastination and reluctance to contemplate the need for .. . arrangements [such as advance directives] . . . makes [such documents] a tool which will all too often go unused by those who might desire it.” Barber v. Superior Court, 147 Cal. App. 3d 1006, 1015, 195 Cal. Rptr. 484, 489 (1983). Tepe tere 19 The Equal Protection Clause of the 14th Amendment commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Classifi- cation in legislation or state court action that impinges on “basic civil rights” is subject to “strict scrutiny”, Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and can be upheld only if it serves a compelling state interest. Cleburne v. Cleburne Living Center, 473 US. 432, 440 (1985). The Wisconsin Supreme Court’s decision cannot survive such scrutiny—indeed, it cannot survive the less restrictive rational relationship test. Jd., 473 U.S. at 442. Wisconsin law recognizes that for incompetents in a persistent vegetative state, the existence and viability of their constitutional liberty interest to be free from un- wanted treatment “does not hinge upon its prescient exer- cise, nor is it extinguished when one is adjudged incom- petent.” L.W., 167 Wis. 2d at 74, 482 N.W.2d at 67. It also recognizes that the failure of a person to have made an advance directive “is not a decision to accept all treat- ment, [and that] society’s increasing ability to prolong the dying process [should not] make it one,” and further that “[t]he right to refuse unwanted treatment must also ex- tend to those who have never been competent. J/d., 167 Wis. 2d at 75, 482 N.W.2d at 68. Yet, the Wisconsin Supreme Court now completely ex- cludes the exercise of guardian discretion in treatment de- cisionmaking for patients who are seriously ill but not persistently vegetative and who did not, or could not, leave clear prior directives. For all children and mentally disabled patients who, by definition, could not have formu- lated treatment directives, and for the vast majority of how-incompetent seriously ill adults who did not leave such directives, treatment must be provided and may not be withdrawn regardless of decisionmakers’ good faith analysis of the benefits and burdens of that treatment for the patient. Ironically, adequately protecting the liberty interests of this patient group, as compared to patients in persistent vegetative state, is more dependent on case-by- Case consideration of treatment benefits and burdens, be- 20 cause unlike individuals in persistent vegetative state, these patients do feel the pain and discomfort of medical proce- dures, and they may sense the humiliation and intrusive- ness of treatment.® Under the Wisconsin Supreme Court’s rule, though, this patient group is denied the right to in- dividualized assessment by their guardians and loved ones as to whether continued treatment will be in their best interests. Instead, “as a matter of law”, they are forced to endure continued application of all life-sustaining treat- ment regardless of the pain, suffering and humiliation it may cause. III. THIS CASE PRESENTS PUBLIC POLICY ISSUES OF NATIONAL IMPORTANCE Medical advances have dramatically altered physiologi- cal conditions of both life and death. While scientific and technological capabilities now offer new possibilities of cure, for some severely ill patients, “medical technology has effectively created a twilight zone of suspended ani- mation where death commences while life, in some form, continues.” Rasmussen, 154 Ariz. at 211, 741 P.2d at 678. Many individuals want no part of a life sustained only by medical technology. If a guardian can never rec- ommend treatment termination for a ward who is not per- manently vegetative (unless, as is rare, the patient left a clear prior directive), physicians will be less likely to treat incompetent wards aggressively while there is still hope of recovery, and guardians will be less likely to authorize such aggressive treatment. As explained by the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research: “[A]n even more troubling wrong occurs when a treatment that might save life or improve health is not started because the health care personnel are afraid that they will find it very difficult to stop treatment if, as is fairly likely, it proves to be of 6 Patients in persistent vegetative state are completely incapable of participating in or recognizing their environment. They have no cognitive abilities and only the most primitive ability to respond to stimuli. See In re L.W., 167 Wis. 2d-53, 482 N.W.2d 60 (1992). ee 21 little benefit and greatly burdens the patient.”* The Con- roy court, too, recognized that family and doctors may be discouraged, on account of inability to later stop life sup- port measures, from “even attempting certain types of care [which] could thereby force them into hasty and premature decisions to allow a patient to die.” In re Conroy, 98 N.J. 3d 321, 370, 486 A. 2d 1209, 1234 (1985). The incidence of this barrier to treatment initiation will vary, State by state, on account of the current divergence among the states regarding application of the “best inter- ests” standard for terminating treatment for patients who are not persistently vegetative. In addition, families and care givers who have authorized treatment for incompetent patients in some states will be faced with the horrible, yet real, prospect that the only way to protect their incompe- tent loved ones’ best interests is to move them to a state that honors their constitutional liberty interests to ter- minate treatment. The issues surrounding “best interests” treatment de- cisionmaking for hopelessly ill, incompetent patients pres- ent constantly changing and challenging variables, as science and technology push back the threshold of our knowledge. The states need uniform guidance from this Court on these issues, because proper resolution hinges upon the nature and strength of individuals’ federal con- Stitutional liberty interests. CONCLUSION For all of the foregoing reasons, the petition for a writ of certiorari should be granted. 7 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment at 75 (1983). * Counsel of Record 22 Respectfully submitted, ROBYN S. SHAPIRO * MIRIAM S. FLEMING MICHAEL, BEST & FRIEDRICH LLP 100 East Wisconsin Avenue Suite 3300 Milwaukee, Wisconsin 53202 (414) 271-6560 Attorneys for Petitioner APPENDIX Seth Ea NE haa ‘la APPENDIX SUPREME COURT OF WISCONSIN No. 95-2719 IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF EDNA M.F. BETTY SPAHN, GUARDIAN OF EpDNA M.F. AND MARK WITTMAN, GUARDIAN AD LITEM FOR EDNA M.F., ; Appellants, HOWARD B. EISENBERG, Respondent-Designate. Argued Jan. 8, 1997 Decided June 12, 1997 DONALD W. STEINMETZ, Judge. Betty Spahn (Spahn) seeks review of a decision by the Circuit Court for Wood County, Judge Dennis D. Conway, denying her request to withdraw artificial nutri- tion from her sister, Edna M.F. The court held that it was without authority to grant Spahn’s request because Edna is not in a persistent vegetative state. This case presents this court with two issues: 1) Whether the guardian of an incompetent person who has not extended an advance directive and is not in a persistent vegetative state has the authority to direct withdrawal of life sustaining medical treat- ment from the incompetent person; and 2) Whether in this case, notwithstanding the fact that she is not in a persistent vegetative state, there is 2a a clear statement evidenced in the record of Edna’s desire to die rather than have extreme measures applied to sustain her life under circumstances such as these. Relying on this court’s previous decision in In re Guard- ianship of L.W., 167 Wis.2d 53, 482 N.W.2d 60 (1992), we hold that a guardian may only direct the withdrawal of life-sustaining medical treatment, including nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward. We further hold that in this case, where the only indication of Edna’s desires was made at least 30 years ago and under different circumstances, there is not a clear statement of intent such that Edna’s guardian may authorize the withholding of her nutrition. Edna M.F. is a 71-year old woman who has been diagnosed with dementia of the Alzheimer’s type. She is bedridden, but her doctors have indicated that she re- sponds to stimulation from voice and movement. She also appears alert at times, with her eyes open, and she responds to mildly noxious stimuli.. According to these doctors, her condition does not meet the definition of a persistent vegetative state. In 1988, a permanent feeding tube was surgically inserted in Edna’s body. Edna cur- rently breathes without a respirator, but she continues to receive artificial nutrition and hydration. Edna’s con- dition is not likely to improve. Edna’s sister and court-appointed guardian, Betty Spahn, seeks permission to direct the withholding of Edna’s nutrition, claiming that her sister would not want to live in this condition. However, the only testimony presented at trial regarding Edna’s views on the use of life-sustaining medical treatment involves a statement made in 1966 or 1In his testimony at trial, Dr. John Przybylinski, one of Edna M.F.’s doctors, described the mildly noxious stimuli as “either pinch- ing her arm or her leg or rubbing her sternum.” 3a 1967. At that time, Spahn and Edna were having a con- versation about their mother, who was recovering from depression, and Spahn’s mother-in-law, who was dying of cancer. Spahn testified that during this conversation, Edna said to her: “I would rather die of cancer than lose my mind.” Spahn further testified that this was the only time that she and Edna discussed the subject and that Edna never said anything specifically about withholding or with- drawing life-sustaining medical treatment. In October of 1994, the Ethics Committee at the Marsh- field Nursing and Rehabilitation, the facility where Edna lives, met to discuss the issue of withholding artificial nutrition from Edna. The committee approved the with- holding of the nutrition if no family member objected. However, one of Edna’s nieces refused to sign a state- ment approving the withdrawal of nutrition. On January 12, 1995, Spahn filed a petition in Wood County Circuit- Court as guardian of an incompetent person, Edna M.F., asking the court to issue an order confirming Spahn’s decision to withhold nutrition from Edna. On January 13, 1995, the court appointed Mark Wittman (Wittman) as the guardian ad litem. The court denied Spahn’s petition. The case is now before this court on a petition to bypass the court of appeals. However, because both Spahn and Wittman are arguing to withhold nutrition, this court has appointed Attorney Howard Eisen- berg as respondent-designate to argue for sustaining the life of Edna M.F. The issue of the right to terminate life-sustaining medi- cal treatment first came to the national forefront in the controversial case In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), cert. denied sub nom., 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976). In Quinlan, Joseph Quinlan petitioned the court to be appointed guardian of his 21-year old daughter, Karen. Karen was in a chronic 4a persistent vegetative state® and her father sought the ex- press power to authorize “the discontinuance of all ex- traordinary medical procedures now allegedly sustaining Karen’s vital processes and hence her life... .” Id. 355 A.2d at 651. Because Karen existed in a persistent vege- tative state, and there was no hope of her ever recovering from this state, the court granted Joseph Quinlan’s re- quests. Id. 355 A.2d at 671-72. Fourteen years later, the United States Supreme Court considered whether the state of Missouri could require clear and convincing evidence of an incompetent’s wishes before authorizing the withdrawal of life-sustaining medi- cal treatment, including nutrition and hydration, when the incompetent is in a persistent vegetative state. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). In making its decision, the Court determined that the states have an interest in protecting the lives of their citizens and that that interest is demonstrated, among other ways, “by treating homicide as a serious crime.” Id. at 280, 110 S.Ct. at 2852. On the other hand, the Court notes that “[i]t cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment.” Id. at 281, 110 S.Ct. at 2853. The Court concludes that the rights of the state 2[r. Fred Plum, the doctor who created the term, defined a person in a persistent vegetative state “as a subject who remains with the capacity to maintain the vegetative parts of neurological function but who . .. no longer has any cognitive function.” Quinlan, 355 A.2d at 654. Cognitive function can be best understood as “either self-awareness or awareness of the surroundings in a learned manner.” See In re Jobes, 108 N.J. 394, 529 A.2d 434, 438 (1987). ’ The Court in Cruzan defined persistent vegetative state as “a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive function.” Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 266. 110 S.Ct. 2841, 2845, 111 L.Ed.2d 224 (1990). Sa and the individual must be balanced: “we think a State may properly decline to make judgments about the ‘qual- ity’ of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.” Id. The Court upheld the decision of the Missouri Supreme Court to require that a guardian meet a “clear and con- vincing” standard before terminating an incompetent’s life- sustaining medical treatment, including artificial nutrition and hydration.* The Court explained that these life-and- death decisions have great consequences, and that an erroneous decision to terminate cannot be remedied: An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence re- garding the patient’s intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment at least create the potential that a wrong decision will eventu- ally be corrected or its impact mitigated. An errone- ous decision to withdraw of life-sustaining treatment, however, is not susceptible to correction. Id. at 283-84, 110 S.Ct. at 2854. Two years after the Cruzan decision was rendered, this court was faced with a similar case, In re Guardian- ship of L.W., 167 Wis.2d 53, 482 N.W.2d 60 (1992). In L.W., this court considered the issue of whether an incompetent individual in a persistent vegetative state *We note here that the Cruzan Court did not decide that the liberty interest in refusing life-sustaining medical treatment in- cludes the right to refuse nutrition and hydration. The Court merely assumed so for the purposes of ruling on the proper evidentiary standard in the case. See In re Guardianship of L.W., 167 Wis.2d 53, 71, 482 N.W.2d 60 (1992). 6a has the right to refuse life-sustaining medical treatment, including nutrition and hydration. The court further con- sidered whether a court-appointed guardian may exercise that right on behalf of the incompetent patient. This court began its analysis of the situation with an exploration of the possible constitutional rights implicated by these cir- cumstances, and concluded “that an individual’s right to refuse unwanted medical treatment emanates from the common law right of self-determination and informed consent, the personal liberties protected by the Fourteenth Amendment, and from the guarantee of liberty in Article I, section I of the Wisconsin Constitution.” Id. at 67, 482 N.W.2d 60. This court further concluded that the right to refuse unwanted treatment applies to both competent and incom- petent individuals, and that the right of the incompetent to refuse may be exercised by his or her guardian. Id. at 73, 76, 482 N.W.2d 60. The court in L.W. then faced the choice of what standard the guardian should apply in determining whether to continue life-sustaining medical treatment. The guardian argued for a subjective test con- sidering the ward’s past values, wishes, and beliefs (the “substituted judgment” standard), and the guardian ad litem argued in favor of the standard upheld in Cruzan requiring “clear and convincing evidence” of the ward’s desires. Noting that this court has rejected the substi- tuted judgment standard in the past® and that the clear and convincing evidence standard would be too strict, this court concluded that an objective “best interests” standard 5In the case of In re Guardianship of Pescinski, 67 Wis.2d 4, 7-8, 226 N.W.2d 180 (1975), this court held that a guardian must act under the “best interests” standard with respect to the ward, and the court explicitly declined to adopt the “substituted judgment” standard. In the case of In re Guardianship of Eberhardy, 102 Wis.2d 539, 307 N.W.2d 881 (1981), the court again chose to apply the “best interests” standard to the guardian-ward relationship. See Id., at 566, 567. 307 N.W.2d 881. 7a was the appropriate standard to apply when deciding whether to withdraw life-sustaining medical treatment from an incompetent ward in a persistent vegetative state. Id. at 76, 78, 81, 482 N.W.2d 60. The only thing that matters in the decision-making process is what would be in the ward’s best interests. Of course, the court noted, if the wishes of the ward are clearly evidenced, then it is in the best interests of the ward to have his or her wishes honored. Id. at 79-80, 482 N.W.2d 60. In sum, this court concluded in L.W. “that an incompe- tent individual in a persistent vegetative state has a con- stitutionally protected right to refuse unwanted medical treatment, including artificial nutrition and hydration,” and that a guardian may consent to withholding or withdrawal of such treatment without prior approval of the courts if to do so is in the “best interests” of the ward. Id. at 63, 482 N.W.2d 60. However, this court stressed the fact that the opinion in L.W. “is limited in scope to persons in a persistent vegetative state.” Id. Spahn asks this court to extend L.W. beyond its current scope to include incompetent wards who are not in a per- sistent vegetative state. Spahn notes that in L.W., this court concluded that the right to refuse unwanted medical treatment applies to competent and incompetent people alike, even if there has been no advance directive on the part of the incompetent ward. In the case In re Guardianship of Eberhardy, 102 Wis.2d 539, 307 N.W.2d 881 (1981), this court was faced with the request to authorize a guardian of an incompetent to consent to the sterilization of the incompe- tent, a mentally disabled woman. The guardian argued that since the competent person has the right to steriliza- tion, that right should not be withheld from the incompe- tent. This court explained in Eberhardy that even though all citizens have the same constitutional rights, the United States Supreme Court has recognized that “the uninhibited a 8a exercise of those rights may be hedged about with restric- - tions that reflect the public policy of protecting persons of a distinct class.” Id. at 572, 307 N.W.2d 881. For example, this court notes that the Supreme Court has recognized that the decision by a minor to have an abor- tion could be circumscribed by action requiring a show- ing of maturity or “best interests” to make a decision with- out parental involvement. Id. at 572, 307 N.W.2d 881, citing Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). Additionally, a state may require a physician to notify a minor’s parents before agreeing to perform an abortion. Id. at 572-73, 307 N.W.2d 881, citing H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981). The Eberhardy court proceeded to explain that the mentally disabled are a similar class to minors in that they are also subject to “special protections of the state” be- cause many mentally disabled adults are “not competent to exercise a free choice.” Id. at 573, 307 N.W.2d 881. The court explained that “[wJhile the Constitution would gen- erally mandate a free choice for sui juris adults, a free choice is an empty option for those who cannot exercise it.” Id. This brings us to the situation at hand—whether this court should allow surrogate decisionmakers to decide to withhold or withdraw life-sustaining medical treatment from an incompetent adult who is not in a persistent vegetative state. This court in Eberhardy said that for the purposes of sterilization, incompetent people are to be considered “a distinct class to whom the state owes a special concern.” Id. at 574, 307 N.W.2d 881. So, al- though incompetent adults have the same constitutional rights as competent adults, they do not have the same - ability to exercise those rights. Someone must instead act in the best interests of that person to make a decision regarding whether to withhold or withdraw life-sustaining treatment. However, if that person is not in a persistent 9a vegetative state, this court has determined that, as a matter of law, it is not in the best interests of the ward to with- draw life-sustaining treatment, including a feeding tube, unless the ward has executed an advance directive or other statement clearly indicating his or her desires. One of the main reasons that this court in L.W. limited the scope of its holdings is the fact that The American Academy of Neurology explains that people in a_per- sistent vegetative state do not feel pain or discomfort. L.W., 167 Wis.2d at 87, note 17, 482 N.W.2d 60. In the case at bar, Edna MLF. is not in a persistent vegeta- tive state and could therefore likely feel the pain and discomfort of starving to death. Even a competent per- son cannot order “the withholding or withdrawal of any medication, life-sustaining procedure or feeding tube” if “the withholding or withdrawal will cause the declarant pain or reduce the declarant’s comfort” unless the pain or discomfort can be alleviated through further medical means. Wis. Stat. § 154.03(1). See also Wis. Stat. $155.20(4). In the case where withdrawal of life-sustain- ing medical treatment, including nutrition or hydration, will cause pain or discomfort, then, the competent and incompetent person have exactly the same rights.° This court has established a bright-line rule in L.W. that the guardian of an incompetent ward possesses the authority to direct withholding or withdrawal of life- sustaining medical treatment, including artificial nutrition and hydration, if it is in the best interests of the ward and the ward is in a persistent vegetative state. Spahn now asks this court to extend the scope of L.W. to in- clude those incompetent patients who are afflicted with incurable or irreversible conditions of health. -We decline to go down this slippery slope, for the consequences and *Of course, a competent and incompetent person always have the same rights. See generally In re Guardianship of L.W., 167 Wis.2d 53, 73-74. 482 N.W.2d 60 (1992). 10a the confusion may be great. One author explains as follows: While at first euthanasia may be institutionalized only for those in terrible pain, or those who are terminally ill, or those for whom it is otherwise appropriate, the pressure of the allocation of health care resources will inevitably enlarge the class for whom euthanasia is deemed appropriate. Every society has a group who are deemed to be socially unworthy and mem- bers of that group—the uneducated, the unemployed, the disabled, for example—will become good candi- dates for euthanasia. Barry R. Furrow et al., Bioethics: Health Care Law and Ethics 325 (1991). This court has drawn a bright-line in L.W., and we will not venture down the slippery slope of extending it when there is insufficient evidence of the ward’s desires. Even though Edna M.F. is not currently existing in a persistent vegetative state, if her guardian can demon- strate by a preponderance of the evidence a clear state- ment of Edna’s desires in these circumstances, then it is in the best interests of Edna to honor those wishes.’ See L.W., 167 Wis.2d at 79-80, 482 N.W.2d 60. The reason this court requires a clear statement of the ward’s desires is because of the interest of the state in preserving human life * and the irreversible nature of the decision to with- 7 We stress that this right has been limited by the legislature in Wis. Stat. § 154.03(1), which does not permit withdrawal of life- sustaining medical treatment, including nutrition and hydration, if it would cause pain or discomfort unless the pain or discomfort can be alleviated through further medical means. 8 This court has set out the four relevant state interests that must be considered in making decisions about medical treatment decisions for incompetent people. These are 1) preserving life, 2) safeguarding the integrity of the medical profession, 3) preventing suicide, and 4) protecting innocent third parties. In re Guardian- lla draw nutrition from a person. This court explained the magnitude of this type of decision as compared to other, less permanent, decisions in Eberhardy: Importantly, however, most determinations made in the best interests of a child or an incompetent person are not irreversible; and although a wrong decision may be damaging indeed, there is an opportunity for a certain amount of empiricism in the correction of errors of discretion. Errors of judgment or revi- sions of decisions by courts and social workers can, in part at least, be rectified when new facts or second thoughts prevail. . . . Sterilization as it is now under- stood by medical science is, however, substantially irreversible. Eberhardy, 102 Wis.2d at 567-68, 307 N.W.2d 881. Like sterilization, the decision to withdraw life-sustaining medi- cal treatment is also not reversible, because death is not reversible. It is for this reason, then, that we require a guardian to show a clear statement of the ward’s desires by a preponderance of the evidence. We now turn to the case at bar to determine whether there is sufficient evidence in the record to reflect a clear Statement of desire by Edna M.F. while she was still competent. The trial court did not make an explicit factual finding as to whether the guardian met this bur- den. However, it did mention in its memorandum deci- sion that none of the witnesses who presented letters and affidavits to the court ever discussed the matter with Edna M.F., and that the only testimony as to Edna’s opinions on the situation dates back to 1966 or 1967. Generally, findings of fact shall not be set aside unless they are clearly erroneous, Wis. Stat. § 805.17(2), but in a situation where there are no explicit factual findings, “this court may affirm the judgment if ‘{a] perusal of the ship of L.W., 167 Wis.2d 53, 90, 482 N.W.2d 60. Preserving life is the most significant state interest at issue here. See id. 12a evidence shows that the court reached a result which the evidence would sustain if specifically found.’” Grimh v. Western Fire Ins. Co., 5 Wis.2d 84, 89, 92 N.W.2d 259 (1958) (citations omitted). The record speaks very little to what Edna’s desires would be under the current circumstances. We know from the record that she was a vibrant woman, a gifted journalist, and a devout Roman Catholic. We know that she was and is loved dearly by her family and friends, and that the majority of them feel that she “would not want to be kept alive” in this condition. We know that in 1966 or 1967 during a time of family crisis, she said that she “would rather die of cancer than lose [her] mind.” But we do not have any clear statement of what her desires would be today, under the current conditions. Her friends and family never had any conversations with her about her feelings or opinions on the withdrawal of nutrition or hydration, and she did not execute any ad- vance directives expressing her wishes while she was competent. There is a presumption that continuing life is in the best interests of the ward. L.W., 167 Wis.2d at 86, 482 N.W.2d 60. The only evidence in the record of Edna’s desires is the general statement she made to her sister in 1966 or 1967. We understand how difficult Edna’s illness has been on her loved ones, and we sympathize with their plight, but the evidence contained in the record is simply not sufficient to rebut the presumption that Edna would choose life. A perusal of the record and the insufficiency of the evidence contained therein supports the result the trial court reached, even though there was no explicit factual finding by the trial court on this issue. In conclusion, this court declines to extend the scope of L.W. beyond those incompetent wards who are cur- rently in a persistent vegetative state; we will not apply L.W. to those with incurable or irreversible conditions. = 3s As such, we re-affirm the decision of this court in L.W. that the threshold at which this court will authorize the withholding or withdrawal of life-sustaining medical treat- ment is the point at which trained medical doctors diag- nose a patient as being in a persistent vegetative state. Whether or not a patient is in a persistent vegetative State is a medical, not legal, determination. If Edna M.F.’s doctors determine she is now in a persistent vege- tative state and the guardian determines that it is in the best interest of Edna, she may be authorized to withhold nutrition and hydration. As it now stands, however, the facts of this case do not support a finding that Edna M.F. is in a persistent vegetative state. That is the rule of L.W. and we decline to extend that rule. Consequently, we hold that a guardian may only direct the withdrawal of life-sustaining medical treatment, includ- ing nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to with- draw is in the best interests of the ward. We further hold that in this case, where the only indication of Edna’s desires was made at least 30 years ago and under different circumstances, there is not a clear statement of intent such that Edna’s guardian may authorize the withholding of her nutrition. The decision of the Wood County Circuit Court is affirmed. SHIRLEY S. ABRAHMSON, Chief Justice (concur- ring). I join in the mandate. I agree that In the Matter of Guardianship of L.W., 167 Wis.2d 53, 482 N.W.2d 60 (1992), should not be extended to persons not in a per- sistent vegetative state.’ ‘The guardian, the guardian ad litem, the two amici and counsel appointed by this court to support the order of the circuit court l4a I write separately because I believe (1) that the major- ity opinion’s characterization of Ms. F.’s condition is in- complete and (2) that further discussion of the application of L.W. to the present case is needed. I. I write first to explain my disagreement with the major- ity opinion’s characterization of some parts of the record. The majority’s discussion of Ms. F’s condition does not do justice to the factual record. The majority describes Ms. F. as bedridden, responsive to stimulation and appear- ing alert at times. Majority op. at 487. While this de- scription is true, it conveys an inaccurate picture of Ms. F.’s medical situation. Ms. F. breathes without assistance but in all other respects is dependent on others for her care and continued existence. Ms. F.’s muscles have deteriorated to the point where her limbs are contracted and immobile. She demonstrates no purposeful response, such as withdrawal, to tactile, aural or visual stimuli; she makes non-specific responses to pinching or tapping of the arm or sternum. There is also some testimony suggesting agree that at the time of the hearing Ms. F. was not in a persistent vegetative state. The guardian and guardian ad litem would have preferred that the attending doctor opine that Ms. F. was in a persistent vegetative state because the guardian could then have directed the withdrawal of nutrition without authorization from the court if two independent physicians concurred in the diagnosis. Yet the guardian accepted the diagnosis of Ms. F.’s attending doctors at that time. Because of the attending doctor’s diagnosis, the guardian, the guardian ad litem and the amici came to court to urge the court to authorize circuit courts to confirm a guardian’s decision to direct withdrawal of nutrition from a person not in a persistent vegetative state. Thus counsel urge us to extend In the Matter of Guardian- ship of L.W., 167 Wis.2d 53, 482 N.W.2d 60 (1992). Court-appointed counsel urges us to adhere to L.W. The amici curiae are the Elder Law Center of the Coalition of Wisconsin Aging Groups and the Board on Aging and Long Term Care of the State of Wisconsin. Each filed a brief. 15a Ms. F. occasionally may track movements in the room with her eyes. Two attending physicians testified; only Dr. Erickson, however, was asked to opine on whether Ms. F. was in a persistent vegetative state at the time of his examination of her. Dr. Erickson testified as follows: The definition [of persistent vegetative state] as de- scribed in the journal of neurology in 1989, January, 1989, requires that there be no behavioral response whatsoever over an extended period of time, and that no voluntary action or behavior of any kind is pres- ent. As I testified before, Edna, in my opinion, has provided evidence of some minimal response to stimulation from her surrounding, and so in the strict definition, I would have to say that she approximates but does not entirely meet that definition of the persistent vegetative state. R. 19 at 33. The circuit court made the following finding of fact, in accord with the guardian’s position and the evidence presented: “Edna M.F. is a 71 year old woman whose mental condition approximates but does not meet the clinical definition of persistent vegetative state.” Given the record in this case the circuit court’s findings that Ms. F. is not in a persistent vegetative state is not Clearly erroneous.” ? The majority opinion embellishes the record when it concludes that Ms. F. could “likely feel the pain and discomfort of starving to death.” Majority op. at 490. Dr. Erickson testified that in his opinion Ms. F. was not experiencing any pain. R. 19 at 34, 51-52. Dr. Przbylinski testified that he thought Ms. F. could experience pain but that a physician could not determine this fact. R. 19 at 63, 68-69. The circuit court made no finding, expires or implied, regarding whether Ms. F. retains sufficient cortical function to feel pain. Retention of the feeding tube would enable the clinic staff to continue to provide Ms, F. with fluids and, if deemed necessary, with pain medication, while nutrition was withheld. 16a The other important factual question is whether Ms. F. made a clear expression of her wishes regarding life- sustaining medical treatment. I agree with the majority opinion that the record supports the finding that she did not and the circuit court’s memorandum decision implies such a finding. That finding is not clearly erroneous. II. I have some concern about the majority opinion’s char- acterization of several aspects of the L.W. decision. L.W. largely controls our decision in the present case. L.W. held that a guardian may consent to the withholding or withdrawal of life-sustaining medical treatment on be- half of one who was never competent, or a once com- petent person whose conduct was never of a kind from which one could draw a reasonable inference upon which to make a substituted judgment,* when: (1) the attending physician and independent physicians determine with reasonable medical certainty that the patient is in a per- sistent vegetative state and has no reasonable chance of recovery to a cognitive and sentient life; and (2) the guardian determines in good faith that the withholding or withdrawal of treatment is in the ward’s best interests. L.W., 167 Wis.2d at 84-85, 482 N.W.2d 60. I feel it necessary to state what I believe L.W. does and does not stand for and to offer further discussion of the application of L.W. to the facts of this case. First, L.W. held that a person’s right to refuse life- sustaining medical treatment includes the right to refuse the provision of nutrition and hydration. L.W., 167 Wis.2d at 70-73, 482 N.W.2d 60.* It is therefore of no 3] agree with the majority opinion that the ward in the present case had not made a clear expression, when competent, of her wishes with regard to life-sustaining medical treatment. 4 Despite the objection raised in the dissenting opinion in L.W., 167 Wis.2d at 99, 482 N.W.2d 60 (Steinmetz, J., dissenting), the 17a moment that the United States Supreme Court “merely assumed” this fact in Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 221 (1990), as the majority opinion states. Majority op. at 488 n. 4. There is no longer any doubt that the provi- sions of nutrition and hydration by artificial means are forms of medical treatment in Wisconsin. Second, L.W. held that a surrogate decision maker must apply a best interests test to determine the propriety of withholding life-sustaining medical treatment to a per- son who was never competent or a person whose conduct while competent was never of a kind from which one could draw a reasonable inference upon which to make a substituted judgment. L.W. 167 Wis.2d at 75-76, 482 N.W.2d 60. L.W. did not establish whether a substituted judgment test or other test is appropriate to determine the propriety of withholding life-sustaining medical treatment from a person who gave indication while competent of his or her wishes regarding such treatment. Nor did L.W. address the proper test to be used when the incompetent person is not in a persistent vegetative state. L.W. was concerned with a person in a persistent vegetative state who by all indications had never been competent. There was, therefore, no basis on which a guardian or a court court concluded its thorough consideration of the issue as follows: “Consistent with the implied holding of the United States Supreme Court, and the specific declaration of the Wisconsin legislature, we conclude that an individual’s right to refuse unwanted life-sustaining medical treatment extends no artificial nutrition and hydration.” L.W., 167 Wis.2d at 73, 482 N.W.2d 60. In response to the dissent- ing opinion the L.W. majority stated: The dissent asserts that this conclusion is ‘unwarranted and mis- conceived’ because Cruzan did not decide the issue. .. . It is clear that we base our conclusion that artificial nutrition and hydration is medical treatment which may be refused primarily on the fact that it is indistinguishable from other forms of treatment and not on the ambivalence of the Cruzan majority. Id. at 73 n. 7, 482 N.W.2d 60. 18a could make a substituted judgment and only under such circumstances did the court rule out a substituted judg- ment test. L.W. 167 Wis.2d at 78-79 and n. 11, 482 N.W.2d 60. It would be inaccurate to conclude that the substituted judgment test has been rejected in other circumstances. I take the majority opinion to imply that L.W. rejected the substituted judgment test for all persons in a persistent vegetative state: Noting that this court has rejected the substituted judgment standard in the past [citing In re Guard- ianship of Pescinski, 67 Wis.2d 4, 7-8, 226 N.W.2d 180 (1975) and In re Guardianship of Eberhardy, 102 Wis.2d 539, 566-67, 307 N.W.2d 881 (1981)] and that the clear and convincing evidence standard would be too strict, this court [in L.W.] concluded that an objective “best interests” standard was the appropriate standard to apply when deciding whether to withdraw life-sustaining medical treatment from an incompetent ward in a persistent vegetative state. [L.W., 167 Wis.2d] at 76, 78, 81, 482 N.W.2d 60. The only thing that matters in the decision-making process is what would be in the ward’s best interests. Majority op. at 489. But the court in L.W., having con- sidered the two cases cited by the majority opinion in the present case, Pescinski and Eberhardy, stated explicitly that substituted judgment may be the appropriate test in some circumstances: [N]either of these cases should be construed to mean that a surrogate decision maker could not make a substituted judgment or decision that was designed to carry out the wishes of the incompetent if the incompetent’s wishes were knowable. .. . To hold that all substituted judgments are ipso facto rejected would probably constitute an unconstitutional hold- ing for it would deprive an incompetent of the con- 19a stitutional right of choice a right that is universally recognized when the choice is ascertainable. L.W., 167 Wis.2d at 79 n. 11, 482 N.W.2d 60. The court has no reason to address the appropriate test in the present case because according to the record Ms. F. was not in a persistent vegetative state and her wishes were not knowable. The majority opinion therefore should not be read to change or add to L.W.’s limited statement regarding the appropriate test for a court or guardian tu apply in determining the propriety of withholding life- sustaining medical treatment.* Third, pursuant to L.W., the court’s ruling today is limited to Ms. F.’s condition in the spring of 1995. The decision whether to seek additional diagnoses when this case is completed properly belongs to the guardian and not to the court. It is a fundamental premise of L.W. that ordinarily decisions to withhold or withdraw life-sustaining medical treatment of a ward are to be made by a guardian in conjunction with doctors and the family, not by the courts. As L.W. stated, courts are poorly equipped to handle these matters. L.W., 167 Wis.2d at 92, 482 N.W.2d 60. 5 For discussions of the substituted judgment and best interests tests see John A. Robertson, Cruzan and the Constitutional Status of Nontreatment Decisions for Incompetent Patients, 25 Ga. L.Rev. 1139 (1991); Yale Kamisar, When is there a Constitutional “Right to Die’? When is there no Constitutional “Right to Live’?, 25 Ga. L.Rev. 1203 (1991); John A. Robertson, Assessing Quality of Life: A Response to Professor Kamisar, 25 Ga. L.Rev.1243 (1991); Stewart G. Pollock, Life and Death Decisions: Who Makes Them and By What Standards?, 41 Rutgers L.Rev. 505 (1989); Nancy K. Rhoden, Litigating Life and Death, 102 Harv. L.Rev. 375, 380 419 (1988); Joanna K. Weinberg, Whose Right Is It Anyway? Individualism, Community, and the Right to Die: A Commentary on the New Jersey Experience, 40 Hastings L.J. 119 (1988); Rebecca Morgan, Florida Law and Feeding Tubes The Right of Removal, 17 Stetson L.Rev. 109 (1987). 20a If the guardian chooses to seek further diagnoses and if the doctors, applying current medical knowledge, deter- mine that Ms. F. is at the time of examination in a per- sistent vegetative state, the guardian may consent to with- drawal of nutrition or the guardian may decide not to withdraw nutrition. In either event, no further circuit court proceeding is available or required unless an inter- ested person objects to the withdrawal of nutrition. The diagnosis of a persistent vegetative state or its absence is made by qualified physicians using scien- tifically current information and standards. Guardians and doctors must be allowed to adopt the medical com- munity’s most advanced thinking on the subject.® It is similarly important that physicians who are called upon to make the apparently difficult diagnosis of a persistent vegetative state be expert in this area of medicine. Court review of the guardian’s determination is necessary only if a party in interest objects. L.W., 167 Wis.2d at 92-93 and n. 20, 482 N.W.2d 60. Fourth, the holding in L.W. should be understood to state the principle that the fact that the ward is in a persistent vegetative state is a significant legal threshold. Under L.W. the opinion of an attending physician is essential for the withdrawal of nutrition. Dr. Erickson, one of the attending physicians, was an internist, had extensive experience with older persons including treating Alzheimer’s patients, and held a certificate of added quali- fications in geriatrics. While the guardian and guardian ad litem believe that withdrawal of life-sustaining treat- ment for Ms. F. is appropriate, they relied on the diag- ® Unlike the other concurring opinion I do not believe this court should determine the differences, if any, between the 1994 and earlier medical standards about persistent vegetative state and the appropriate medical diagnosis of persistent vegetative state without the assistance of experts’ testimony and without briefing by the parties. 2la nosis of Ms. F.’s attending physicians, as they were re- quired to do under L.W. When the attending physician did not diagnose Ms. F. as in a persistent vegetative state, there was no point in consulting independent physicians. The issue of who should be the independent physicians to diagnose Ms. F.’s condition is thus not raised in this case and has not been briefed by the parties. Furthermore, L.W. does not ad- dress the difficult question of what procedure should be followed when there is disagreement among the consulted physicians whether the patient is in a persistent vegetative state. Again, this questior is not raised or briefed in this case. To the extent it may be necessary or appropriate for the court to change, add to, or expand upon the stand- ards set forth in L.W., the court should do so only with the benefit of full adversarial briefing in a case presenting a real controversy framed by adversarial parties. See, e.g., State v. Garfoot, 207 Wis.2d 215, 239, 558 N.W.2d 626 (1997) (Bablitch, J., concurring). I view L.W. as the first step in addressing withdrawal of life-sustaining medical treatment from persons in a persistent vegetative state who have not clearly expressed their wishes. As is evident in this case, L.W. has not answered all the questions that will be raised in this com- plex and troubling area. I have tried to take care, how- ever, not to use the present case as the vehicle to offer answers to unresolved complex questions that have been neither raised nor briefed. I am concerned that I not engage in appellate decision making of the sort Attorney Bernard Witkin has characterized as “Have Opinion, Need Case.” B.E. Witkin, Manual on Appellate Court Opin- ions § 86 at 155 (1977). Fifth, L.W. commented favorably on the role of the health care provider’s ethics committee.’ Hospital or nurs- 7L.W., 167 Wis.2d. at 89, 482 N.W.2d 60. For a discussion of the role of ethics committees see Gregory A. Jaffe, Institutional err 22a ing home ethics committees provide an important forum for careful deliberation about the decision to withhold life-sustaining medical treatment. Based on the limited record before us, it appears that the committee reviewing the request by Ms. F.’s guardian did not function effec- tively. Had Ms. F. been in a persistent vegetative state and had an interested person objected to the withdrawal of nutrition, the circuit court stated that it would have been unable to give weight to the committee’s purported determination that withholding of nutrition was the ethi- cally proper course. The circuit court noted that no for- mal minutes or report of the meeting was produced at the hearing and that the committee members apparently func- tioned without either a shared body of rules or training in ethics. In fairness to the committee members in this case, it must be noted that the committee had only re- cently been formed and had deliberated in perhaps only one other case. The circuit court also seemed troubled, as am I, with the apparent focus of the ethics committee’s investigation. The committee seemed to understand that its function was to reach a determination that would insulate the facility from legal liability rather than the determination that best comported with medical ethics.* The focus of all par- Ethics Committees’ Legitimate and Impartial Review of Ethical Health Care Decisions, 10 J. Legal Medicine 393 (1989). 8 The ethics committee apparently agreed with the decision to withhold nutrition from Ms. F. but would not agree to carry out this decision without written consent from all family members. It appears that all family members except for one niece of Ms. F. consented in writing. The niece was reported to have said that she did not object to withholding nutrition but that her religious views precluded her from consenting in writing. The circuit judge concluded his own lengthy questioning of one member of the ethics committee with the following: “[T]he way I understand it, what you really have is a liability problem, and that’s why you want everybody to consent, is that correct?” Dr. Erickson answered: “That is correct.” R. 19 at 47. Lee 23a ticipants in this fateful and difficult process should be on the propriety of taking action which will lead to a person’s death. The health care facility’s liability concerns must not be allowed to interfere with the guardian’s efforts to assure the exercise of the ward’s right to be free of un- wanted life-sustaining medical treatment when the guard- ian has determined, in consultation with the physicians, that the ward is in a persistent vegetative state and it is in the ward’s best interests to withhold such treatment. For the foregoing reasons I write separately. WILLIAM A. BABLITCH, Justice (concurring). The medical determination of the existence of a per- sistent vegetative state is, literally, one of life or death. It is important the doctors get it right. It is equally im- portant that we get the law right. The majority and the concurring opinions, and this writer, agree that if a person is not in a persistent vegeta- tive state, medical treatment cannot be withdrawn. the doctors determine that she meets the current medical definition of persistent vegetative state, medical treatment may be withdrawn even if her physical condition has not changed from the time of the diagnosis rendered in this case. ) We further agree that if Ms. F. is diagnosed again and But then we part company. Regrettably, the majority and the concurring opinions fail to establish a significant safeguard designed to ensure the accuracy of that determination. They would allow any person with a medical degree to make the critical diag- nosis that drives the ultimate decision to withdraw or continue life sustaining medical treatment. Furthermore, they insist on the presence of three doctors only when the decision is to withdraw life sustaining medical support. Respectfully, I cannot join such a decision. 24a I would direct as a matter of law that anytime a guard- ian requests a diagnosis for the purpose of determining the presence or absence of a persistent vegetative state in order to ascertain whether life sustaining medical treat- ment can be withdrawn, three conditions must be met. First, the diagnosis must be made by the attending physi- cian and two independent doctors. Second, at least one of the independent doctors must be a specialist in the medi- cal field relevant to the patient’s condition.’ Third, I join with the concurring opinion that the doctors must rely on current medical authority generally accepted in that specialty. Inasmuch as Alzheimer’s is a neurological disease, I would direct that in the case of Ms. F. one of the independent doctors be a neurologist relying on cur- rent medical authority accepted in the field of neurological medicine. I. The majority and concurring opinions fail to require that one of the attending physicians be a specialist in the medical field relevant to the patient’s condition. This case amply demonstrates the need for such pro- tection. Neither of the two physicians who examined Ms. F. were neurologists. The only doctor who was asked his opinion on whether Ms. F. was in a persistent vegeta- tive state testified she was not. However, he testified that ! Although these two issues were neither briefed nor argued by the parties, the posture in which this case comes to us does raise them. It is obvious from this record that all parties agreed to a trial and appellate strategy of attempting to extend L. W.. Thus, none of the original parties were adversarial to each other, and none of them briefed nor argued these issues. From their perspective, it was unncessary. Nonetheless, I would reach and decide them. We have on occasion in the past ordered the parties to brief issues not presented in the briefs or arguments. We have, as we did in this very case, appointed counsel to advance opposing positions. I would support similar action in this case. The nature of these issues make it highly unlikely that this court will see them again for years, if ever. 25a his diagnosis was based on a January 1989 article in the medical journal, Neurology. The authority he relied on was arguably outdated. The entire 1989 Statement upon which the doctor relied covered two pages in that journal. In 1991, the Multi- Society Task Force on Persistent Vegetative State was created.” The Task Force’s 1994 Statement, a far more exhaustive treatment of persistent vegetative state, sum- marizes current knowledge of the medical aspects of per- sistent vegetative state.© The 1994 Statement explains, refines and substantially augments the 1989 definition of persistent vegetative state applied by Ms. F.’s doctor in his diagnosis. As more fully discussed below, the 1994 Statement appears to call into serious question the accuracy of the diagnosis made by Dr. Erickson. Unless this court directs that at least one of the doctors be a specialist current in his or her field, there is nothing to stop this from happening again. The potential for seri- 2 The 1994 Statement, Medical Aspects of the Persistent Vegeta- tive State, Parts I and II, 330 N.Engl. J. Med (May 26, 1994), was approved by the executive committee of each of the following medical societies: the American Academy of Neurology, the Child Neurology Society, the American Neurological Association, the American Association of Neurological Surgeons, and the American Academy of Pediatircs. Two representatives from each of these societies were appointed to the Task Force, and an advisory panel of consultants was selected from the related fields of medicine, ehtoics, and law. 3’ The 1994 Statement speaks to the “vegetative state,” distin- guishing between a “persistent vegetative state” and a “permanent vegetative state.” It refers to the persistent vegetative state as a diagnosis, the permanent vegetative state as a prognosis, i.e., an irreversible persisent vegetative state. L.W. used the term per- sistent vegetative state to refer to an irreversible condition. Be- cause the majority and concurring opinions continue to use the term “persistent” to categorize the irreversible condition, I do likewise. 26a ous error, as possibly occurred here where Ms. F. was diagnosed as not being in a persistent vegetative state, is patent. The potential for serious error in cases involving a patient diagnosed as being in a persistent vegetative state is equally apparent. In retrospect, L.W. should have insisted upon, rather than recommended, a specialist in the field. It did not, and the majority and concurring opinions continue in that error. In a justifiable desire to leave these decisions as much as reasonably possible to family members and their physicians and not the courts, the majority and con- curring opinions abdicate too much. They are willing to allow any person with a medical degree to diagnose the presence or absence of a persistent vegetative state. I am not. A diagnosis of the presence or absence of a persistent vegetative state drives the ultimate decision to withdraw or continue life sustaining medical treatment. It is far too important and critical a decision to leave in the hands of anybody with a medical degree. A level of expertise beyond a medical degree should be demanded. Other states and commentators have recognized this problem. One legal scholar cites the risk of an erroneous medical diagnosis as one of the three major factors that contribute to the risk of an improper decision to continue or to withhold life sustaining medical treatment. Linda C. Fontiman, Privacy and Personhood Revisited: A New Framework for Substitute Decision Making for the In- competent, Incurably Ill Adult, 57 Geo. Wash. L.Rev. 801, 808 (March 1989). Professor Fontiman rules that a number of courts have implicitly recognized this possi- bility of a mistaken diagnosis. Id. at 809. The New Jersey Supreme Court, which set the stage for decision making analysis in these cases with the Quin- 27a lan decision, expressly recognized the risk of an erroneous diagnosis. In re Jobes, 108 N.J. 394, 529 A.2d 434, 447-448 (1987). To guard against the risk of such an error and to ensure the preservation of medical ethics, the surrogate decision maker must secure statements from “at least two independent physicians knowledgeable in neurol- ogy that the patient is in a persistent vegetative state.” Id. 529 A.2d at 448. Acknowledging that the prognosis determination is a medical one, the Washington Supreme Court held that even this prong of the life-sustaining medical treatment decision making process must incorporate safeguards to protect patients from an inaccurate diagnosis. In re Col- yer, 99 Wash.2d 114, 660 P.2d 738, 749 (1983) (re- quiring confirmation of the attending physician’s diagno- sis by a prognosis board consisting of “no fewer than two physicians with qualifications relevant to the patient’s condition”). Accord In re Moorhouse, 250 N.J.Super. 307, 593 A.2d 1256 (App. 1991) (requiring that the attending physician’s diagnosis be confirmed by the hos- pital’s prognosis committee and at least two independent physicians knowledgeable in neurology); John F. Ken- nedy Memorial Hospital, inc. v. Bludworth, 452 So.2d 921, 926 (Fla.1984) (requiring certification that patient is in a permanent vegetative state by the primary treating physician and concurrence in the certification by “at least two other physicians with specialties relevant to the pa- tient’s condition.” ). The concurring opinion recognizes to some extent these problems by stating that “It is similarly important that physicians who are called upon to make the apparently difficult diagnosis of a persistent vegetative state be expert in this area of medicine.” Concurrence at 495. It is more than “important.” It is critical. I would not recommend, I would direct. The absence of this safe- guard in the majority and concurring opinions charts a perilous course. 28a Dr. Erickson, who is not a neurologist, relying on argu- ably outdated medical authority, diagnosed Ms. F. and testified that she approximates but does not meet the strict definition of persistent vegetative state. If he was in error, important constitutional rights were denied Mrs. F. This record raises serious concern in my mind that he may have been in error. At the very least, his testi- mony did not indicate a knowledge of the 1994 State- ment. A neurologist might well have been aware. It might have changed the diagnosis. Nevertheless, if there was an error made in the diagnosis of Ms. F., or others like her, it was an error made on the side of life. It can be corrected. Not so in the case of a diagnosis of a persistent vegetative state of a person who is in fact not in a persistent vegetative state. Once medical treatment is withdrawn, life will cease: misdiag- nosis in that event cannot be corrected. Surely some minimum safeguards speaking to the expertise and knowl- edge of the doctors should be present. The majority requires nothing other than a medical degree. I would require more. - II. Unfortunately, the majority and concurring opinions require three doctors only when life sustaining support is to be withdrawn. They are silent as to the threshold stage in any case involving these issues: the decision of the guardian to seek a diagnosis. I would require three doctors anytime a guardian requests a diagnosis for the purpose of determining the presence or absence of a persistent vegetative state. The importance of that requirement is demonstrated by this case. Once the attending physician determined that Ms. F. was close but not actually in a persistent vegetative state, the inquiry was ended. But if Ms. F. was incorrectly diagnosed, as I believe is suggested in this record, im- portant constitutional rights were denied her. 29a We require three doctors when the decision to withdraw life support is made. Is it not equally important to require the same number of doctors at the threshold inquiry which, in a case like this, is determinative of constitutional rights? I would require that once the guardian determines that the question of withdrawal of life sustaining medical support is presented, the attending physician and two independent doctors must be consulted. IIT. Fortunately, the concurring opinion recognizes the im- portance of using current medical authority, and directs that it be used. Concurrence at 494 (“If the guardian chooses to seek further diagnoses and if the doctors, applying current medical knowledge, determine that Ms. F. is at the time of the examination in a persistent vegeta- tive state, the guardian may consent to withdrawal of nutrition or the guardian may decide not to withdraw nutrition.” (emphasis added)). Id. at 494-495 (“Qual- ified physicians make the diagnosis of a persistent vege- tative state or its absence, using scientifically current information and information and standards.” (emphasis added)). I join that part of the concurring opinion. Accordingly, that requirement has the support of a major- ity of this court. The importance of using current medical authority is amply demonstrated in this record. Dr. Erickson, relying on a January, 1989, journal of neurology, testified that the standards expressed therein required “that there be no behavioral response whatsoever over an extended period of time.” (emphasis added). Further, he testified that those 1989 standards required there be “no voluntary action or behavior of any kind [present].” (emphasis added). Because there was “some minimal response to stimulation from her surroundings” the doctor concluded Ms. F. “approximates but does not entirely meet that definition of the persistent vegetative state.” 30a This testimony was crucial. No one disputed the doc- tor’s finding that Ms. F. was not in a persistent vegetative state. The circuit court had no choice but to agree. But current medical authority, the 1994 Statement, contradicts or at the very least calls into serious question Dr. Erick- son’s conclusion. It does not require, “no behavioral re- sponse whatsoever” to the presence of a persistent vege- tative state; rather, it requires no evidence of “sustained” behavior of that kind. In order to more fully understand why the 1994 State- ment seriously undercuts the doctor’s conclusion, it is necessary to first understand more completely the condi- tion of Ms. F. with respect to her response to stimulation.* Although she appears to respond to voices or noises in her room, she makes no meaningful response to questions or commands. R:19 at 24-25.° Several medical pro- fessionals who had regular contact with Ms. F. described her condition. Licensed practical nurse, Patricia Rohmeyer (Rohmeyer), has had regular contact with Ms. F. since 1986. R:19 at 6. Rohmeyer testified that she “[dJoes not respond most of the time when you speak to her, either by blinking her eyes or opening her eyes.” R:19 at 7. Edna F. does not respond when Rohmeyer places a finger im her hand and asks her to squeeze the finger. R:19 at 8 When asked whether Ms. F. looked toward a person who called her name, Rohmeyer responded that “[s]he wasn’t able to today.” R:19 at 8. She described Ms. F.’s condiiton as “progressive through the years.” R:19 at 8. *I agree with the concurring opinion that the majoirty opinion does not convey an accurate picture of Ms. F.’s condition. The facts recited in the concurring opinion together with the facts stated herein convey an accurate portrayal. In addition, I note that Ms. F. has been in this condition since 1993, and her doctors testify she will not improve, she will only get worse. 5 References are to pages and documents in the record. — ee eT ee 3la Spahn described her sister’s condition to the circuit court: “Sometimes I can get her to look at me. . . . Some- times I can get her to look. Not very often. The last couple times I have been in I’ve gotten—I did get her to open her eyes, but not to look at me.” R:19 at 75-76. Even more telling was the testimony of Dr. Erickson. He described Ms. F.’s condition on December 19, 1994: She did respond to voice by opening her eyes, but did not respond to command. . . . She opened her eyes and looked, but not in any meaningful way at me. She simply appeared to respond to a voice or to a noise in the room. I discussed with the nursing staff at that time, although I did not notice that she would occasionally track movement in the room. The level of alertness that I found at that time in discus- sion with the nursing staff was consistent with what they had observed on a day to day basis... . Period- ically she would follow movement in the room, or she may respond to tactile stimulation or voice by open- ing her eyes. But there was no meaningful response to command or attempts at communication. R:19 at 24-25. The record reveals that upon application of mildly noxious stimuli, Ms. F. might open her eyes or grimace but, her doctors say, she fails to make a consistent effort to withdraw from or to remove the stimulation. R: 19 at 26, 65. Dr. Przyblinski described Ms. F.’s response to mildly noxious stimuli: “When I gave her tactile stimulation which I considered mildly noxious, either pinching her for arm [sic] or her leg or rubbing her sternum, she grimaced and she did make a moaning sound. She did not make any attempt to push my hand away or pull her arm or leg away, so I didn’t see anything that I would see as pur- poseful movement with that kind of stimulation.” R:19 32a at 63. He further states that she is no longer aware of, nor can she interact in any purposeful manner, with her sur- roundings, or the people who are attending to her. R:19 at 64-65 (emphasis added). Dr. Erickson has never observed a consistent effort by Ms. F. to withdraw from noxious stimuli. R:19 at 25. When he touches her face, or presses gently on her sternum, she might make a minimal response, i.e., a movement or facial expression, acknowledging the stimu- lation, but he has observed no consistent effort to with- draw or to remove the stimuli. R:19 at 26. When doctors subject her to noxious stimuli, Ms. F.’s vital signs remain stable. R:19 at 34. The 1994 Statement lists the following criteria accord- ing to which the vegetative state can be diagnosed: (1) no evidence of awareness of self or environment and an inability to interact with others; (2) no evi- dence of sustained, reproducible, purposeful, or vol- untary behavioral responses to visual, auditory, tac- tile, or noxious stimuli; (3) no evidence of language comprehension or expression; (4) intermittent wake- fulness manifested by the presence of sleep-wake cycles; (5) sufficiently preserved hypothalamic and brain-stem autonomic functions to permit survival with medical and nursing care; (6) bowel and blad- der incontinance; and (7) variably preserved cranial- nerve reflexes (pupillary, oculocephalic, corneal, ves- tibule-ocular, and gag) and spinal reflexes. Dr. Erickson testified that a persistent vegetative state required “no behavioral response whatsoever.” As seen from the above 1994 Statement, that appears to be an incorrect conclusion: “no evidence of sustained, repro- ducible, or voluntary behavioral responses to . . . stimuli.” (emphasis added). The 1994 Statement further cautions that motor or eye movements and facial expressions in response to various stimuli also occur in persons in an 33a irreversible vegetative state. These movements and ex- pressions occur in stereotyped patterns that indicate re- flexive responses integrated at deep subcortical levels, and are not indicative of learned voluntary acts. The presence of these responses is consistent with complete unaware- ness. The 1989 Statement does not discuss the subtle distinctions between the visual pursuit of a person who is aware of the surroundings and a person in a persistent vegetative state. Given that Dr. Erickson believed the existence of a persistent vegetative state required no behavioral response whatsoever, given that he testified Ms. F.’s responses were “minimal,” and given the above quoted texts from the 1994 Statement, I conclude a serious question exists as to the accuracy of his diagnosis. If so, important con- stitutional rights have been denied Ms. F. The use of current medical authority might well have changed his diagnosis. Fortunately, that is now the mandate of this court. In summation, I would hold that any time a guardian requests a diagnosis for the purpose of determining the presence or absence of a persistent vegetative state to ascertain whether life sustaining medical treatment may be withdrawn, three conditions must be met: 1) the diag- nosis must be made by the attending physician together with two independent doctors; 2) at least one of the inde- pendent doctors must be a specialist in the medical field relevant to the patient’s condition; and, 3) the diagnosis must rely on current medical authority generally accepted in that specialty. If indeed Ms. F.’s original diagnosis was incorrect, needless suffering has been endured by her family and loved ones as they have been forced to sit helplessly by watching this woman they love continue an emptiness that only the most literal would call life. Had the procedures I recom- mend been utilized, this might have been avoided. For- 34a tunately, if error has been made it can be corrected. All members of this court agree that she can be re-diagnosed. If her attending physician and two independent doctors agree that she meets the current medical definition of persistent vegetative state, and no one objects, medical treatment may be withdrawn without further recourse to the courts. This is so even if her physical condition has not changed from the time of the original diagnosis ren- dered in this case. Others may not be as fortunate. For the above stated reasons, I respectfully concur. JANINE P. GESKE, Justice (concurring). I join both the majority opinion authored by Justice Donald W. Steinmetz and the concurring opinion authored by Chief Justice Shirley S. Abrahamson. ANN WALSH BRADLEY, Justice (concurring). I join both the majority opinion authored by Justice Donald W. Steinmetz and the concurring opinion authored by Chief Justice Shirley S. Abrahamson. *I also agree with the concurring opinion with respect to its discussion of what L.W. does and does not stand for, specifically that the provision of nutrition and hydration by artificial means are forms of medical treatment in Wisconsin, and that the substituted judgment test has not been rejected in Wisconsin in all circumstances. 35a OFFICE OF THE CLERK SUPREME COURT MADISON, WISCONSIN 53701-1688 November 20, 1996 No. 95-2719 IN MATTER OF GUARDIANSHIP AND PROTECTIVE PLACEMENT OF EDNA M.F.: SPAHN V. WITTMAN L.C. #93PP36 ORDER A motion to enlarge the time for oral argument and to realign the guardian ad litem as an appellant rather than a respondent having been filed by the respondent-designate, Howard B. Eisenberg and considered by the court; IT IS ORDERED that the motion to realign the guar- dian ad litem as an appellant rather than a respondent is granted; and IT IS FURTHER ORDERED the motion to enlarge the time for oral argument is denied. The attorneys for the guardian and guardian ad litem shall share 30 minutes of oral argument time as they see fit. MARILYN L. GRAVES Clerk of Supreme Court 36a OFFICE OF THE CLERK SUPREME COURT MADISON, WISCONSIN 53701-1688 September 19, 1996 IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF EDNA M.F., INCOMPETENT: Betty SPAHN V. MARK WITTMAN # 95-2719 ORDER The Court having reviewed the briefs filed by the par- ties in the above matter and having determined that proper consideration of the issues presented require briefing and oral argument in support of the circuit court decision on appeal. IT IS ORDERED that Howard B. Eisenberg is ap- pointed as respondent-designate to appear in this proceed- ing in support of the decision of the circuit court on appeal. IT IS FURTHER ORDERED that this case is removed from the schedule for oral argument on October 17, 1996. IT IS FURTHER ORDERED that within 30 days of the date of this order, the respondent-designate shall file a brief in compliance with Rule 809.19. IT IS FURTHER ORDERED that the parties will be informed in due course of the date and time this matter is rescheduled for oral argument. MARILYN L. GRAVES Clerk of Supreme Court 37a OFFICE OF THE CLERK SUPREME COURT MADISON, WISCONSIN 53701-1688 April 16, 1996 No. 95-2719 IN MATTER OF GUARDIANSHIP AND PROTECTIVE PLACEMENT OF EDNA M.F.: SPAHN v. WITTMAN L.C. #93PP36 The court having considered the petition to bypass the court of appeals submitted on behalf of appellant- petitioner, Betty Spahn, in this case. IT IS ORDERED the petition to bypass is granted and the appeal is accepted for consideration in this court; and IT IS FURTHER ORDERED that the briefs previously submitted by the parties to the court of appeals may stand as the parties’ briefs in this court. The parties shall submit ten additional copies of their briefs within ten days of the date of this order. The parties will be notified of the date and time for oral argument in this appeal in due course. MARILYN L. GRAVES Clerk of Supreme Court 38a [Filed Oct. 4, 1995] STATE OF WISCONSIN CIRCUIT COURT WOOD COUNTY PROBATE BRANCH 95-2719 Confidential IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF: Epna M. F., Incompetent BETTY SPAHN, Guardian of Edna M. F., App. Vv. MARK WITTMAN, Guardian Ad Litem for Edna M. F., Resp. NOTICE OF APPEAL File No.: 93PP36 Classification Code. 50401 that the Appellant, Betty Spahn, Guardian of Edna M. Folz, by John R. Hutchinson, appeals to the Court of Appeals, August 22, 1995 in the Circuit Court for Wood County, the Case No. 93-PP-36, wherein the Court denied Appellant’s Petition for An Order Confirming Guardian’s Decision to Withdraw Artificial Nutrition. 39a This is not an appeal within Section 752.31(2), Wis. Stats. This is not an appeal entitled to preference by statute. Dated this 29th day of September, 1995. Wynia & BILLinGs, S.C. /s/ John R. Hutchinson JOHN R. HUTCHINSON State Bar No. 01020212 40a STATE OF WISCONSIN CIRCUIT COURT WOOD COUNTY Case No. 93PP36 IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF, Epna M. F., Incompetent. ORDER This matter having come on for hearing on March 22, 1995 and April 11, 1995 on a Petition for an Order of the Court confirming the Guardian’s decision to withdraw artificial nutrition with appearances by the Petitioner, Wynia & Billings, S.C. by John R. Hutchinson as attorney for the Petitioner and Attorney Mark Wittman as Guar- dian Ad Litem, this Court finds as follows: 1. Edna M. F. is a 71 year old woman whose mental condition approximates but does not meet the clinical definition of a persistent vegetative state. 2. Edna M. F. is bedridden, incontinent of bowel and bladder, unable to feed herself and unable to move her- self or voluntarily change body position. She requires constant repositioning by others to avoid skin breakdown. However, she breaths without assistance, appears to track movement with her eyes and exhibits general non-specific responses to mildly noxious stimuli. 3. In 1979, Edna M. F. was diagnosed with Dementia- Alzheimers type, a progressive and degenerative disease which affects the cerebral cortex and for which there is no known cure. As a direct result of her disease, her men- tal and physical conditions will continue to deteriorate and, per medical testimony, it is highly unlikely that these conditions will improve. 4la 4. In 1966 or 1967, in the context of a conversat [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1385%3A1. Public record. Not legal advice.