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In Re Estate of Brooks





APPEAL from the Circuit Court of Cook County, Probate Division; Hon. ROBERT JEROME DUNNE, Judge, presiding.


This is an appeal from the probate division of the circuit court of Cook County which entered an order appointing a conservator of the person of Mrs. Bernice Brooks, and allowed the conservator's request to be authorized to consent, on behalf of Mrs. Brooks, to transfusions of whole blood to her. The transfusions were made, and appellants, Mrs. Brooks and her husband, now seek to have all orders in the conservatorship proceedings expunged, and the petition therein filed dismissed. Questions under both Federal and State constitutions confer jurisdiction on direct appeal. U.S. Const., 1st, 5th and 14th amendments; Ill. Const., art. VI, sec. 5; Supreme Court Rule 28-1.

On and sometime before May 7, 1964, Bernice Brooks was in the McNeal General Hospital, Chicago, suffering from a peptic ulcer. She was being attended by Dr. Gilbert Demange, and had informed him repeatedly during a two-year period prior thereto that her religious and medical convictions precluded her from receiving blood transfusions. Mrs. Brooks, her husband and two adult children are all members of the religious sect commonly known as Jehovah's Witnesses. Among the religious beliefs adhered to by members of this group is the principle that blood transfusions are a violation of the law of God, and that transgressors will be punished by God. This organization's publication, "Blood, Medicine and the Law of God", which had been filed by Mrs. Brooks with her physician, states the principle: "The matter was not to be taken lightly. Any violation of the law on blood was a serious sin against God, and God himself would call the law violator to account. `As for any man of the house of Israel or some alien resident who is residing as an alien in your midst who eats any sort of blood, I shall certainly set my face against the soul that is eating the blood, and I shall indeed cut him off from among his people'. — Leviticus 17:10". Also a part of the foundation for this belief is the admonition found in the book of the Acts of the Apostles, 15:28-29: "For it seemed good to the Holy Ghost, and to us, to lay upon you no greater burden than these necessary things; that ye abstain from meats offered to idols, and from blood, and from things strangled, and from fornication; from which if ye keep yourselves, ye shall do well". Various other Biblical texts are quoted as authority for the belief, including Genesis 9:3-4: "Every moving animal that is alive may serve as food for you. As in the case of green vegetation, I do give it all to you. Only flesh with its soul — its blood — you must not eat". Premised upon the belief that "The blood is the soul" (Deuteronomy 12:33) and that "We cannot drain from our body part of that blood, which represents our life, and still love God with our whole soul, because we have taken away part of `our soul — our blood — ' and given it to someone else" (Blood, Medicine and the Law of God, p. 8), members of Jehovah's Witnesses regard themselves commanded by God to neither give nor receive transfusions of blood.

Mrs. Brooks and her husband had signed a document releasing Dr. Demange and the hospital from all civil liability that might result from the failure to administer blood transfusions to Mrs. Brooks. The patient was assured that there would thereafter be no further effort to persuade her to accept blood.

Notwithstanding these assurances, however, Dr. Demange, together with several assistant State's attorneys, and the attorney for the public guardian of Cook County, Illinois, appeared before the probate division of the circuit court with a petition by the public guardian requesting appointment of that officer as conservator of the person of Bernice Brooks and further requesting an order authorizing such conservator to consent to the administration of whole blood to the patient. No notice of this proceeding was given any member of the Brooks family. Thereafter, the conservator of the person was appointed, consented to the administration of a blood transfusion, it was accomplished and apparently successfully so, although appellants now argue that much distress resulted from transfusions due to a "circulatory overload".

We are met at the outset with appellees' contention that since the blood transfusions have been given, the conservator has been discharged, and the estate has been closed, this cause is now moot. As to this question, language in a previous decision of this court (People ex rel. Wallace v. Labrenz, 411 Ill. 618, 622-23) is particularly appropriate:

"Before we reach the merits, we meet the State's contention that the case is now moot and should be dismissed because the blood transfusion has been administered, the guardian discharged and the proceeding dismissed. Because the function of courts is to decide controverted issues in adversary proceedings, moot cases which do not present live issues are not ordinarily entertained. `The general rule is that when a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved or where the substantial questions involved in the trial court no longer exist, it will dismiss the appeal or writ of error'. People v. Redlich, 402 Ill. 270, 279.

"But when the issue presented is of substantial public interest, a well-recognized exception exists to the general rule that a case which has become moot will be dismissed upon appeal. (See cases collected in 132 A.L.R. 1185.) Among the criteria considered in determining the existence of the requisite degree of public interest are the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.

"Applying these criteria, we find that the present case falls within that highly sensitive area in which governmental action comes into contact with the religious beliefs of individual citizens. * * * In situations like this one, public authorities must act promptly if their action is to be effective, and although the precise limits of authorized conduct cannot be fixed in advance, no greater uncertainty should exist than the nature of the problems makes inevitable. In addition, the very urgency which presses for prompt action by public officials makes it probable that any similar case arising in the future will likewise become moot by ordinary standards before it can be determined by this court. For these reasons the case should not be dismissed as moot."

We accordingly proceed to a consideration of the issues.

It is argued by appellants that the absence of notice in any form to Mrs. Brooks or her husband, who were readily available at the hospital, constituted a denial of due process vitiating the entire proceedings; that insufficient proof was presented to establish the patient's incompetency (the doctor testified Mrs. Brooks was "semi-disoriented" and not "fully capable" but also stated "I think she would consent to surgery. It is the fact this is a transfusion of blood she objects to"); and that acceptance of medical treatment previously refused because of religious and medical reasons (blood transfusions are not entirely free from hazard) cannot be judicially compelled under the circumstances here present.

While, under the particular circumstances here, some merit is to be found in all of these contentions, we believe we should predicate our decision upon the fundamental issue posed by these facts, i.e.: When approaching death has so weakened the mental and physical faculties of a theretofore competent adult without minor children that she may properly be said to be incompetent, may she be judicially compelled to accept treatment of a nature which will probably preserve her life, but which is forbidden by her religious convictions, and which she has previously steadfastly refused to accept, knowing death would result from such refusal? So far as we have been advised or are aware, there is no reported decision in which this question has been squarely presented and decided.

It is established that the commands of the First Amendment to the United States Constitution relating to religious freedom are embraced within the Fourteenth Amendment and by it extended to the States. (Cantwell v. Connecticut, 310 U.S. 296, 303, 84 L.ed. 1213, 60 S.Ct. 900, 903; School District of Abington Township v. Schempp, 374 U.S. 203, 215, 10 L.ed.2d 844, 83 S.Ct. 1560, 1568.) While the early decisions in this area consider as a unit the First Amendment provisions that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof", the later opinions treat the cases as falling within the Establishment Clause or the Free Exercise Clause. It has been held that governmental actions cannot be proscribed under the latter clause unless they are demonstrated to have a coercive effect upon the individual, but the presence of that effect here is self-evident.

The motivating factors underlying the constitutional separation of church and State and the prohibitions against governmental interference in matters of religion emanated from the circumstances prevailing in many European countries during precolonial ages, and from the practices among the colonies themselves prior to federation. The cruel and oppressive measures adopted, and the punishments imposed to compel conformity of all religious beliefs to those held by the most numerous or powerful groups are too well known to require documentation. Even the colonial governments legislated in this area, or attempted to do so, taxing inhabitants against their will for the support of religion or a particular sect, compelling attendance at worship meetings with various penalties including death provided for those who failed or refused to comply, and punishing those nonconformists whose opinions were considered heretical. The controversy culminated in the First Amendment's guarantee to the individual of freedom from governmental domination in his religious beliefs and practices, and the point at which interference therewith may be constitutionally permissible is well illustrated by the proceedings of the Virginia House of Delegates. That body, after a spirited debate, adopted a bill "for establishing religious freedom" drafted by Thomas Jefferson (1 Jeff. Works 45; 2 Howison, Hist. of Va. 298) the preamble of which stated (12 Hen. Stat. 84) "to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty" and "it is time enough for the rightful purposes of civil government for ...

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