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11/13/89 In Re Estate of Longeway (Bonnie Keiner

November 13, 1989

IN RE ESTATE OF LONGEWAY (BONNIE KEINER, APPELLANT, V.


SUPREME COURT OF ILLINOIS

Community Convalescent Center, Appellee)

549 N.E.2d 292, 133 Ill. 2d 33, 139 Ill. Dec. 780 1989.IL.1778

Appeal from the Circuit Court of Du Page County, the Hon. S. Keith Lewis, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case. JUSTICE WARD, Dissenting. JUSTICE CLARK, also Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

Bonnie Keiner, daughter and guardian of the estate and person of Dorothy M. Longeway, petitioned the circuit court of Du Page County to enter an order permitting her to withdraw the artificially administered nutrition and hydration currently sustaining her mother. Community Convalescent Center, the nursing facility where Longeway now resides, intervened and filed a motion to dismiss. The court granted this motion, and we agreed to hear a direct appeal of this dismissal pursuant to Supreme Court Rule 302(b) (107 Ill. 2d R. 302(b)). We reverse and remand.

Beginning in 1976, Dorothy M. Longeway suffered a series of strokes and other illnesses which eventually rendered her unconscious. According to the guardian's petition, Longeway, now 76 years old, has lost all personality, memory, purposeful action, social interaction, thought and emotion, due to severe brain damage. Her prognosis is very poor; although she is not medically "brain dead," the neurological damage is so extensive that she will never regain consciousness. Longeway cannot communicate, but opens her eyes and responds to verbal commands and painful stimuli. She breathes without assistance, but cannot chew or swallow, and requires a surgically implanted gastrostomy tube to receive food and water.

The guardian's petition alleged that Longeway, while still conscious and competent, indicated on several occasions that she did not wish to be kept alive by a machine or device, and would rather die naturally than linger. She did not, however, execute a living will (see Ill. Rev. Stat. 1987, ch. 110 1/2, par. 701 et seq.) or a health care power of attorney (see Ill. Rev. Stat. 1987, ch. 110 1/2, par. 804-1 et seq.). The guardian urged that the gastrostomy tube be withdrawn from Longeway, seeking this relief in two counts: that the guardian be allowed to substitute her judgment for that of her incompetent mother or, alternatively, that she be allowed to make this decision as being in the best interests of her mother.

The circuit court summarily dismissed the "best interests" count, but set a hearing date on the "substituted judgment" count. The court may have felt that substituted judgment was an acceptable procedure for dealing with terminally ill incompetent patients because of the recent appellate court decision in In re Estate of Prange (1988), 166 Ill. App. 3d 1091. This court subsequently vacated the appellate court decision in Prange and dismissed the appeal in this court after the patient's death. (In re Estate of Prange (1988), 121 Ill. 2d 570.) When informed of our action in Prange, the circuit court then cancelled the scheduled hearing and dismissed the substituted-judgment count. The guardian appeals the dismissal of both counts.

The issue in this case is whether the guardian of an incompetent, seriously ill patient may exercise a right to refuse artificial nutrition and hydration on behalf of his ward and, if so, how this right may be exercised.

A number of State courts have addressed the question of whether life-sustaining measures may be withdrawn from incompetent patients: Arizona (Rasmussen v. Fleming (1987), 154 Ariz. 207, 741 P.2d 674), California (Barber v. Superior Court (1983), 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484), Connecticut (Foody v. Manchester Memorial Hospital (Super. 1984), 40 Conn. Supp. 127, 482 A.2d 713), Delaware (Severns v. Wilmington Medical Center, Inc. (Del. Ch. 1980), 425 A.2d 156), Florida (John F. Kennedy Memorial Hospital, Inc. v. Bludworth (Fla. 1984), 452 So. 2d 921), Georgia (In re L.H.R. (1984), 253 Ga. 439, 321 S.E.2d 716), Louisiana (In re P.V.W. (La. 1982), 424 So. 2d 1015), Maine (In re Gardner (Me. 1987), 534 A.2d 947), Massachusetts (Superintendent of Belchertown State School v. Saikewicz (1977), 373 Mass. 728, 370 N.E.2d 417), Minnesota (In re Torres (Minn. 1984), 357 N.W.2d 332), Missouri (Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408), New Jersey (In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647), New York (In re Storar (1981), 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266), Ohio (Leach v. Akron General Medical Center (1980), 68 Ohio Misc. 1, 426 N.E.2d 809), and Washington (In re Hamlin (1984), 102 Wash. 2d 810, 689 P.2d 1372). In addition, at least one Federal case concerned this issue. (Gray v. Romeo (D.R.I. 1988), 694 F. Supp. 580.) With the exception of Missouri, the courts in the cases cited above are unanimous in allowing the withdrawal of life-sustaining medical procedures under appropriate circumstances. At least eight State courts have considered specifically the removal of nutrition and hydration: California (In re Drabick (1988), 200 Cal. App. 3d 185, 245 Cal. Rptr. 840), Florida (Corbett v. D'Alessandro (Fla. App. 1986), 487 So. 2d 368), Maine (In re Gardner (Me. 1987), 534 A.2d 947), Massachusetts (Brophy v. New England Sinai Hospital, Inc. (1986), 398 Mass. 417, 497 N.E.2d 626), Missouri (Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408), New Jersey (In re Jobes (1987), 108 N.J. 394, 529 A.2d 434), New York (Delio v. Westchester County Medical Center (1987), 129 A.D.2d 1, 516 N.Y.S.2d 677; but see In re O'Connor (1988), 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886), and Washington (In re Grant (1987), 109 Wash. 2d 545, 747 P.2d 445). Again, with the exception of Missouri, and New York in In re O'Connor, all the jurisdictions cited have permitted artificial nutrition and hydration to be withdrawn from certain types of patients.

The courts which have grappled with the issue of "the right to die," or as it is often termed, "the right to refuse life-sustaining medical treatment," have found themselves thrust into a realm where law, medicine, and religion intersect. Advancements in medical science have redefined death from a cessation of pulse and respiration (Black's Law Dictionary 488 (4th ed. 1968)) to a cessation of brain activity (see In re Haymer (1983), 115 Ill. App. 3d 349; Ill. Rev. Stat. 1987, ch. 110 1/2, par. 302(b)). Hopelessly or terminally ill patients who in the past would have met with a swift end, now find that medical science can sustain them, near the threshold of death, but not yet across it. "Advances in this area are occurring with such rapidity that science has outstripped the ability of society to develop an ethical base for dealing with problems caused by new possibilities." (In re L.H.R. (1984), 253 Ga. 439, 445, 321 S.E.2d 716, 722.) The role of the judiciary in this area is an uncertain one. Frequently, the courts are not consulted at all. There is reliable information that for many years, members of a patient's family, together with doctors and clergy, have made decisions to withdraw life-sustaining equipment from incompetent, hopelessly ill patients without seeking judicial approval. (See In re Storar (1981), 52 N.Y.2d 363, 385, 420 N.E.2d 64, 75, 438 N.Y.S.2d 266, 277 (Jones, J., Dissenting) (citing survey of physicians showing that 61% believe their colleagues practice euthanasia).) The judiciary is viewed as ill suited to resolve these situations which involve complex medical procedures, diverse religious views, and a need for quick decision-making.

The problem becomes more acute when dealing with artificial nutrition and hydration. Food and water are emotionally symbolic in that food and water are basic necessities of life, and the feeding of those who are unable to feed themselves is the most fundamental of all human relationships. (See In re Grant (1987), 109 Wash. 2d 545, 559-60, 747 P.2d 445, 453.) Also, the removal of food and water causes death from dehydration, which can be an unpleasant experience, as one Justice, in Dissent, noted:

"Removal of the G tube would likely create various effects from the lack of hydration and nutrition, leading ultimately to death. Brophy's mouth would dry out and become caked or coated with thick material. His lips would become parched and cracked. His tongue would swell, and might crack. His eyes would recede back into their orbits and his cheeks would become hollow. The lining of his nose might crack and cause his nose to bleed. His skin would hang loose on his body and become dry and scaly. His urine would become highly concentrated, leading to burning of the bladder. The lining of his stomach would dry out and he would experience dry heaves and vomiting. His body temperature would become very high. His brain cells would dry out, causing convulsions. His respiratory tract would dry out, and the thick secretions that would result could plug his lungs and cause death. At some point within five days to three weeks his major organs, including his lungs, heart, and brain, would give out and he would die. The Judge found that death by dehydration is extremely painful and uncomfortable for a human being. The Judge could not rule out the possibility that Paul Brophy could experience pain in such a scenario. Paul Brophy's attending physician described death by dehydration as cruel and violent." (Brophy v. New England Sinai Hospital, Inc. (1986), 398 Mass. 417, 444 n.2, 497 N.E.2d 626, 641 n.2 (Lynch, J., Dissenting in part).)

Persistently comatose patients, however, are said to lack the capacity to feel pain and suffering, thus ameliorating concerns of a horrifying death. (American Academy of Neurology, Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistently Vegetative State Patient (Adopted April 21, 1988).) If indeed they feel no pain, the concern about these patients then shifts to the prospect of remaining comatose and sustained by artificial feeding for long periods of time until death finally occurs. (See Brophy, 398 Mass. at 437, 497 N.E.2d at 637 (longest recorded survival in this manner is 37 years); Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408, 411 (comatose 30-year-old woman sustained by gastrostomy tube could live 30 years).) Faced with this dilemma, the courts, with the aid of the medical profession, have attempted to look beyond the symbolism of food and water to assess the artificial nature of delivering sustenance to these patients.

Artificial nutrition and hydration is considered a medical life-prolonging treatment by the American Medical Association. In a recent ethics opinion, the AMA states:

"Even if death is not imminent but a patient's coma is beyond doubt irreversible and there are adequate safeguards to confirm the accuracy of the diagnosis and with the concurrence of those who have responsibility for the care of the patient, it is not unethical to discontinue all means of life-prolonging medical treatment. Life-prolonging medical treatment includes medication and artificially or technologically supplied respiration, nutrition or hydration." (Emphasis added.) (American Medical Association Council on Ethics & Judicial Affairs, Opinion 2.18 (1986).)

Artificial nutrition and hydration are also considered as death-delaying procedures in the Living Will Act (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 702(d)) and as health care in the Powers of Attorney for Health Care Law (Ill. Rev. Stat. 1987, ch. 110 1/2, pars. 804-10(a), (b)(1)).

State courts which have allowed nutrition and hydration to be withdrawn from incurably ill patients have agreed that nasogastric tubes, gastrostomies, or intravenous infusions are medical treatments and therefore analytically distinguishable from spoon-feeding or bottle-feeding. (See, e.g., In re Conroy (1985), 98 N.J. 321, 372-73, 486 A.2d 1209, 1236; Delio v. Westchester County Medical Center (1987), 129 A.D.2d 1, 18-19, 516 N.Y.S.2d 677, 688-89; Corbett v. D'Alessandro (Fla. App. 1986), 487 So. 2d 368, 371; In re Grant (1987), 109 Wash. 2d 545, 559-62, 747 P.2d 445, 452-54; In re Gardner (Me. 1987), 534 A.2d 947, 954-55.) Termination of these intrusive procedures does not deprive the patient of life; rather, the inability of the patient to chew or swallow, as a result of his illness, is viewed as the ultimate agent of death. (Delio, 129 A.D. at 23-24, 516 N.Y.S.2d at 692; Brophy, 398 Mass. at 439, 497 N.E.2d at 638.) Consequently, the consensus opinion treats artificial nutrition and hydration as a medical treatment and analyzes the problem of its withdrawal accordingly. We agree with this view, and next must turn to the question of whether a patient has the right to refuse this type of treatment.

The seminal case which addressed the issue of withdrawing life-sustaining medical procedures was In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647. In that case, 22-year-old Karen Ann Quinlan was in a comatose, persistently vegetative state. The New Jersey Supreme Court allowed Quinlan's father, acting as her guardian, to direct the removal of life-supporting apparatus. (Artificial nutrition and hydration, however, were not removed.) Although Quinlan's father asserted several different constitutionally based theories in support of the relief requested, the court found that the right to refuse treatment was premised on the constitutional right of privacy.

Other theories which the Quinlan court considered and rejected included the constitutional rights of free exercise of religion (U.S. Const., amend. I) and freedom from cruel and unusual punishment (U.S. Const., amend. VIII). Subsequent decisions allowing the refusal of life-sustaining medical treatment have been premised upon Federal privacy rights (In re L.H.R. (1984), 253 Ga. 439, 321 S.E.2d 716), State constitutional guarantees of privacy (Corbett v. D'Alessandro (Fla. App. 1986), 487 So. 2d 368), State common law (Delio, 129 A.D.2d 1, 516 N.Y.S.2d 677), or various provisions in State guardianship statutes (In re Drabick (1988), 200 Cal. App. 3d 185, 245 Cal. Rptr. 840). Drawing upon this background, the guardian in the case before us contends that Mrs. Longeway's right to discontinue nutrition and hydration is grounded in Federal and Illinois constitutional privacy rights, common law, and the Illinois Probate Act.

Examining the Federal right of privacy, we note that this right is not explicitly mentioned in the United States Constitution. Nevertheless, the Supreme Court held in Griswold v. Connecticut (1965), 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678, that a constitutional right of privacy exists in penumbras emanating from the various guarantees in the Bill of Rights. Constitutional privacy, however, encompasses only personal rights which are fundamental or implicit in the concept of ordered liberty (Roe v. Wade (1973), 410 U.S. 113, 152, 35 L. Ed. 2d 147, 176, 93 S. Ct. 705, 726), or which are "'deeply rooted in this Nation's history and tradition.'" (Bowers v. Hardwick (1986), 478 U.S. 186, 192, 92 L. Ed. 2d 140, 146, 106 S. Ct. 2841, 2844, quoting Moore v. City of East Cleveland (1977), 431 U.S. 494, 503, 52 L. Ed. 2d 531, 540, 97 S. Ct. 1932, 1938.) The Supreme Court has never ruled on whether the right of privacy guarantees a right to refuse medical care. In fact, in Roe, the Court noted that the right of privacy is not absolute, and rejected the idea that "one has an unlimited right to do with one's body as one pleases." (Roe, 410 U.S. at 154, 35 L. Ed. 2d at 177, 93 S. Ct. at 739.) Moreover, the Supreme Court recently declined to expand the number of rights deemed fundamental and therefore protected by the zone of privacy. Bowers, 478 U.S. at 194-95, 92 L. Ed. 2d at 148, 106 S. Ct. at 2846 (holding that homosexual acts are not constitutionally protected).

Lacking guidance from the Supreme Court, we decline to address whether Federal privacy guarantees the right to refuse life-sustaining medical treatment. Lacking a clear expression of intent from the drafters of our 1970 State constitution, we similarly abstain from expanding the privacy provision of our State constitution to embrace this right. (See Ill. Const. 1970, art. I, § 6 ("[t]he people shall have the right to be secure in their persons . . . against . . . invasions of privacy . . .").) Instead, we follow the wisdom of the Supreme Court in avoiding constitutional questions when the issue at hand may be decided upon other grounds. (Rescue Army v. Municipal Court (1947), 331 U.S. 549, 568-69, 91 L. Ed. 1666, 1678, 67 S. Ct. 1409, 1419-20.) In the present case, we find a right to refuse life-sustaining medical treatment in our State's common law and in provisions of the Illinois Probate Act.

Under common law, a patient normally must consent to medical treatment of any kind. Consent is required to maintain the right of personal inviolability: "No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." (Union Pacific Ry. Co. v. Botsford (1891), 141 U.S. 250, 251, 35 L. Ed. 734, 737, 11 S. Ct. 1000, 1001.) Viewing this right in the context of medical treatment, Justice Cardozo stated, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." (Schloendorff v. Society of New York Hospital (1914), 211 N.Y. 125, 129-30, 105 N.E. 92, 93.) This court has held that informed consent is a prerequisite to surgery. (Pratt v. Davis (1906), 224 Ill. 300.) Lacking consent, a physician cannot force medical care upon a patient, even in life-threatening situations. (Cf. In re Estate of Brooks (1965), 32 Ill. 2d 361 (right to refuse life-saving treatment found in first amendment free exercise of religion clause).) Exceptions to the doctrine of informed consent do exist, for example, in emergency situations (6A C.J.S. Assault & Battery § 7 (1975)) or when a minor needs care (see, e.g., Ill. Rev. Stat. 1987, ch. 111, pars. 4502, 4503).

Furthermore, because a physician must obtain consent from a patient prior to initiating medical treatment, it is logical that the patient has a common law right to withhold consent and thus refuse treatment. This right incorporates all types of medical treatment, including life-saving or life-sustaining procedures. Many of our sister States have based the right to refuse life-sustaining treatment wholly or partly on this common law basis. (See, e.g., Conroy, 98 N.J. 321, 486 A.2d 1209; Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266; Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840; Rasmussen, 154 Ariz. 207, 741 P.2d 674; Gardner, 534 A.2d 947.) We find the reasoning of these opinions persuasive, and hold that in Illinois, the common law right to refuse medical treatment includes, under appropriate circumstances, artificial nutrition and hydration.

Because we are concerned here not with the right of a patient's personal refusal of medical treatment, but rather with the exercise of this common law right through a surrogate, we must examine relevant provisions of the Probate Act to see if a guardian may act as that surrogate. We find that the Probate Act impliedly authorizes a guardian to exercise the right to refuse artificial sustenance on her ward's behalf. Section 11a-17 of the Probate Act specifically permits a guardian to make provisions for her ward's "support, care, comfort, health, education and maintenance." (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 11a-17.) Moreover, if the patient previously executed a power of attorney under the Powers of Attorney for Health Care Law (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 804-1 et seq.), that act permits her to authorize her agent to terminate the food and water that sustain her (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 804-10). If a health care agency is in force, and a court appoints a guardian to handle other matters for the ward, the Probate Act specifically provides that the guardian has "no power, duty or liability with respect to any . . . health care matters covered by the agency." (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 11a-17(c).) Logically, the legislature would not have prohibited the guardian from usurping the authority of an agent acting under a health care power of attorney, if the guardian could not have exercised the agent's powers in the first place. Thus, if only an agent can terminate food and water under a power of attorney, the Probate Act would not have precluded a guardian from interfering with this prerogative, unless the guardian also would have this power.

It is argued that a guardian cannot have this power because of this court's decision in In re Marriage of Drews (1986), 115 Ill. 2d 201. In Drews, we held that a guardian had no standing to file suit to dissolve her ward's marriage, finding nothing in the Probate Act that "grants [a] guardian standing to maintain or defend any legal proceeding." (Emphasis in original.) (Drews, 115 Ill. 2d at 206.) Here, however, the guardian is not instituting a legal proceeding or suit on behalf of a ward, but is merely petitioning the court for authority to perform an act which is within the implied authority granted by the Probate Act. Consequently, we find Drews inapposite to the case at bar and hold that a guardian may exercise the right to refuse artificial sustenance on behalf of a ward in accordance with the guidelines discussed below.

The first step in allowing an incompetent patient to refuse artificial nutrition and hydration through a surrogate is to define, as best we can, what kind of an incompetent patient is eligible for surrogate exercise of this right. First, we wish to state emphatically that we do not condone suicide or active euthanasia in this State. Accordingly, an incompetent patient must be terminally ill before his right to refuse artificial sustenance may be exercised. We note that the Living Will Act (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 702(h)) defines "terminal condition" as an incurable and irreversible condition which is such that death is imminent and the application of death-delaying procedures serves only to prolong the dying process. We find that it is appropriate to apply this definition to the requirement we have just stated that the incompetent patient must be terminally ill. Second, such patient must be diagnosed as irreversibly comatose, or in a persistently vegetative state. Although neurologists are the most adept at defining these terms and will reliably diagnose each patient on a case-by-case basis, the reported testimony of a physician in Brophy is illustrative:

"A physician who performed a neurological evaluation of Brophy testified that a persistent vegetative state is a condition in which the patient:

'(a) shows no evidence of verbal or non-verbal communication;

(b) demonstrates no purposeful movement or motor ability;

(c) is unable to interact purposely with stimulation provided by his environment;

(d) is unable to provide for his own basic needs;

(e) demonstrates all of the above for longer than three months.'" (Brophy, 398 Mass. at 421 n.4, 497 N.E.2d at 628 n.4.)

Finally, the accuracy of the diagnosis must be safeguarded. Consequently, the patient's attending physician along with at least two other consulting physicians must concur in the diagnosis. See Foody, 40 Conn. Supp. at , 482 A.2d at 721.

The next step is to balance an eligible patient's right to discontinue sustenance against any interests the State may have in continuing it. The cases identify four countervailing State interests: "(1) the preservation of life; (2) the protection of the interests of innocent third parties; (3) the prevention of suicide; and (4) maintaining the ethical integrity of the medical profession." (Superintendent of Belchertown State School v. Saikewicz (1977), 373 Mass. 728, 741, 370 N.E.2d 417, 425.) Normally, none of these interests will override a patient's refusal of artificially administered food and water. Adequate safeguards exist to protect life and third parties, and to prevent suicide. Moreover, the ethical integrity of the medical profession can be ensured by not compelling (by court order or any other means) any medical facility or its staff to act contrary to their moral principles. The patient can be transferred to a different facility or a new physician can be appointed to carry out the patient's wishes, if the current staff or physician cannot. See Brophy, 398 Mass. at 439-41, 497 N.E.2d at 638-39.

The next step is to detail how the patient's wishes can be ascertained. Obviously, a patient who is irreversibly comatose or in a vegetative state will be incompetent, unable to communicate his intent. The courts have generally employed one of two theories in ascertaining an incompetent patient's wishes: "best interests" or "substituted judgment."

The best-interests approach has been utilized by several courts dealing with this issue. (See, e.g., Drabick, 200 Cal. App. 3d. 185, 245 Cal. Rptr. 840; Rasmussen, 154 Ariz. 207, 741 P.2d 674; Torres, 357 N.W.2d 332.) Under the best-interests test, a surrogate decisionmaker chooses for the incompetent patient which medical procedures would be in the patient's best interests. The criteria used include "relief from suffering, preservation or restoration of functioning, and quality and extent of sustained life." (Rasmussen, 154 Ariz. at 222, 741 P.2d at 689.) The problem with the best-interests test is that it lets another make a determination of a patient's quality of life, thereby undermining the foundation of self-determination and inviolability of the person upon which the right to refuse medical treatment stands. A dilemma arises, of course, when the patient is an infant or lifelong incompetent who never could have made a reasoned judgment about his quality of life. While not passing on the viability of the best-interests theory in Illinois, we decline to adopt it in this case because we believe the record demonstrates the relevancy of the substituted-judgment theory. Furthermore, the substituted-judgment theory has already been implicitly adopted in Illinois by our legislature in the Powers of Attorney for Health Care Law. The Law states: "Your agent will have authority . . . to obtain or terminate any type of health care, including withdrawal of food and water . . . if your agent believes such action would be consistent with your intent and desires." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110 1/2, par. 804-10.

Under substituted judgment, a surrogate decision-maker attempts to establish, with as much accuracy as possible, what decision the patient would make if he were competent to do so. Employing this theory, the surrogate first tries to determine if the patient had expressed explicit intent regarding this type of medical treatment prior to becoming incompetent. (See In re O'Connor (1988), 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886.) Where no clear intent exists, the patient's personal value system must guide the surrogate:

"'ven if no prior specific statements were made, in the context of the individual's entire prior mental life, including his or her philosophical, religious and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering and death, that individual's likely treatment/nontreatment preferences can be discovered. Family members are most familiar with this entire life context. Articulating such knowledge is a formidable task, requiring a literary skill beyond the capacity of many, perhaps most, families. But the family's knowledge exists nevertheless, intuitively felt by them and available as an important decisionmaking tool.'" Jobes, 108 N.J. at 415, 529 A.2d at 445, quoting Newman, Treatment Refusals for the Critically Ill: Proposed Rules for the Family, the Physician and the State, 3 N.Y.L. Sch. Hum. Rts. Ann. 45-46 (1985).

Actual, expressed intent of a desire to have artificial sustenance withdrawn is what the New York Court of Appeals required in the recent decision, In re O'Connor (1988), 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886. There, the court held that "despite its pitfalls and inevitable uncertainties, the inquiry must always be narrowed to the patient's expressed intent, with every effort made to minimize the opportunity for error." (O'Connor, 72 N.Y.2d at 530, 531 N.E.2d at 613, 534 N.Y.S.2d at 892.) The Concurring opinion, however, criticizes this specific-subjective-intent rule, stating that what it requires is factually impossible because there is no way to determine what the actual, present intent of an incompetent patient is. Moreover, the concurrence states that the result in O'Connor under the specific-subjective-intent rule and under a substituted-judgment test would be the same. Consequently, we find that although actual, specific express intent would be helpful and compelling, the same is not necessary for the exercise of substituted judgment by a surrogate. In this case, Mrs. Longeway's guardian must substitute her judgment for that of Longeway's, based upon other clear and convincing evidence of Longeway's intent. The guidelines quoted above from Jobes should aid in ascertaining Longeway's desires and in reaching a decision. On remand, the court should not hesitate to admit any reliable and relevant evidence if it will aid in judging Longeway's intent.

The final step in a patient's exercise of the right to refuse life-sustaining treatment is to determine the role of the court. The majority of the cases addressing the issue do not specifically require a court order to withdraw artificial life support. (Rasmussen, 154 Ariz. 207, 741 P.2d 674; Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840; Jobes, 108 N.J. 394, 529 A.2d 434; Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266; contra In re P.V.W. (La. 1982), 424 So. 2d 1015.) Nevertheless, we feel that to halt artificial sustenance, the intervention of a Judge is proper for several reasons.

First, Illinois has a strong public policy of preserving the sanctity of human life, even if in an imperfect state. (Siemieniec v. Lutheran General Hospital (1987), 117 Ill. 2d 230, 249.) "'Health care professionals serve patients best by maintaining a presumption in favor of sustaining life, while recognizing that competent patients are entitled to choose to forego any treatments, including those that sustain life.'" (In re Farrell (1987), 108 N.J. 335, 351, 529 A.2d 404, 412, quoting President's Commission for the Study of Ethical Problems in Medicine and Biomedical & Behavioral Research, Deciding to Forego Life Sustaining Treatment 3 (1983).) Because we agree that a presumption exists favoring life, we find that scrutiny by a Judge is appropriate in these cases. Furthermore, since the key element in deciding to refuse or withdraw artificial sustenance is determining the patient's intent, we require proof of this element by clear and convincing evidence. Accord Rasmussen, 154 Ariz. 207, 741 P.2d 674; P.V.W., 424 So. 2d 1015; Gardner, 534 A.2d 947; Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266; Leach, 68 Ohio Misc. 1, 426 N.E.2d 809.

Second, court intervention is necessary to guard against the remote, yet real possibility that greed may taint the judgment of the surrogate decisionmaker. (See generally Drabick, 200 Cal. App. 3d at 218, 245 Cal. Rptr. at 861.) We stress that the record in the case before us reveals no such problems and we do not imply that greed is present here. We can foresee other cases, however, where the surrogate decisionmaker stands to profit from the patient's demise and covets ill-gotten wealth to the point of fatal attraction. Generally, no penetrating investigation will be required. Nevertheless, the Judge is free to inquire as to the beneficiaries and extent of the patient's estate, if it appears necessary to do so.

Third, the courts have a parens patriae power which enables them to protect the estate and person of incompetents. (Quinlan, 70 N.J. at 44, 355 A.2d at 666; 27 Am. Jur. 2d Equity § 69 (1966).) Moreover, if the surrogate decisionmaker is a court-appointed guardian, procedural due process questions involving deprivation of life may arise. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2.) Although it is uncertain whether sufficient State action is present to invoke the protections of procedural due process, utilizing a court to oversee the guardian's decision as to the termination of artificial nutrition and hydration will forestall any potential constitutional infirmities.

We recognize that some will consider court intervention objectionable. The medical profession may rightfully resent judicial intrusion into its domain. The slow, deliberate nature of the court system may frustrate the family and loved ones of the patient. Although we feel that the courts can act expeditiously in clear-cut uncontested cases, we acknowledge these objections and the difficulty in reaching a balanced approach to this dilemma. For this reason, we, like most courts that have pondered these issues, invite the legislature to address this problem. (Accord Rasmussen, 154 Ariz. 207, 741 P.2d 674; L.H.R., 253 Ga. 439, 321 S.E.2d 716; P.V.W., 424 So. 2d 1015; Farrell, 108 N.J. 335, 529 A.2d 404; Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266; Grant, 109 Wash. 2d 545, 747 P.2d 445.) Because we believe the right to refuse artificial sustenance is premised on common law and not necessarily constitutionally based, the legislature is free to streamline, tailor, or overrule the procedures outlined in this opinion to the extent that no constitutional doctrine is abrogated. The legislature is the appropriate forum for the ultimate resolution of the questions surrounding the right to die:

"Legislatures are also considered to be better suited than courts to set guidelines in this area. Legislatures may be better able to balance the interests involved in determining whether to permit termination of care, and they have the power to make laws and regulations for the protection of the public health and welfare. In addition, the delicate ethical considerations involved in making a 'right to die' decision may require a legislative determination, as the legislature has the job of weighing and understanding social interaction. Finally, it is argued that legislatures directly represent the people and thus are best able to determine social policy." Brown, Therefore, Choose Death, 10 Hum. Rts. J. 39, 44 (1982).

Our legislature has peripherally addressed the question before us in both the Living Will Act (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 701 et seq.) and the Powers of Attorney for Health Care Law (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 801-1 et seq.). However, neither a living will nor a health care power of attorney is involved in this case. Therefore, neither law is helpful, except as it may reflect legislative intent or public policy. The Living Will Act specifically includes intravenous feeding and tube feeding as death-delaying procedures which, under the direction of a living will, may be withdrawn. However, the Living Will Act provides that nutrition and hydration may not be withdrawn or withheld if the withdrawal or withholding would result in death solely from dehydration or starvation, rather than from the existing terminal condition. Ill. Rev. Stat. 1987, ch. 110 1/2, par. 702(d).

In the Powers of Attorney for Health Care Law, it is specifically authorized that food and water and other life-sustaining measures may be withdrawn (Ill. Rev. Stat. 1987, ch. 110 1/2, pars. 804-10(a), (b)(1)) without any limitation on the exercise of that power, if death would result solely from dehydration or starvation rather than the existing terminal condition. Thus, it cannot be said that the limitation on the withdrawal of nutrition and hydration in the Living Will Act expresses the public policy of this State and prohibits all such withdrawal if it would result in death solely from dehydration or starvation, rather than from the existing terminal condition, because, as noted, the Powers of Attorney for Health Care Law contains no such limitation on the power of the agent to withdraw food and water. Furthermore, the Powers of Attorney for Health Care Law specifically provides that that law prevails over all inconsistent acts and "[i]f the principal has a living will . . . the living will shall not be operative so long as an agent is available who is authorized by a health care agency to deal with the subject of life-sustaining or death-delaying procedures for and on behalf of the principal." Ill. Rev. Stat. 1987, ch. 110 1/2, par. 804-11.

In 1988, House Bill 4094 was introduced in the General Assembly. This was a new act not referring to or amending the Living Will Act or the Powers of Attorney for Health Care Law. House Bill 4094 created a presumption that nutrition and hydration are to be given unless refused by the patient while competent, with certain exceptions. Whether or not this bill was meant to be an expression of legislative intent that the policy of this State does not permit the withdrawal of nutrition or hydration, as is sought in the case before us, is not clear from the language of the bill, or from the legislative debates. In any event, the bill was defeated.

We therefore find no law or expression by the legislature of public policy which prohibits the exercise of the power of the guardian to withdraw nutrition and hydration in this case. We acknowledged above that the legislature is in a better position than are the courts to resolve the sensitive issues presented in this case. However, we have this case before us for decision and we must decide it in light of the law and the public policy which now exists. We cannot defer to the legislature for some possible future expression from that body as to public policy, which may or may not be forthcoming. As we have read the present law and the expression of the General Assembly as to public policy, as noted above, we see nothing which would prohibit the guardian from acting in the manner directed in this opinion.

Until legislative action directing otherwise, however, any exercise of the common law right to refuse or withdraw artificial nutrition and hydration by a surrogate must follow the guidelines of this opinion. Consequently, the decision of the trial court in this case is reversed, and ...


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