(dissenting). I cannot agree that, on the record before us, there exists sufficient proof that Mary O’Connor, when competent, had expressed a clear desire to forego intravenous and nasogastric feeding under the circumstances of her present physical condition.
There is, of course, no doubt that the use of artificial means of hydration and nourishment, whether by intravenous infusions or by way of a feeding tube, are now considered to be a means of life support the use of which a patient can decline as part of his or her right to refuse medical treatment (see, Matter of Delio v Westchester County Med. Center, 129 AD2d 1). However, there still must be clear and convincing evidence that, when competent, the patient made a conscious decision to refuse such treatment under the circumstances of his or her condition at the time of the application under consideration (see, Matter of Storar, 52 NY2d 363, cert denied 454 US 858; Matter of Delio v Westchester County Med. Center, supra).
While the requisite clear and convincing standard may not be as high as that of proof beyond a reasonable doubt, it still necessitates an evidentiary showing that is clear, positive and substantial (see, Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219-220). The clear and convincing standard exists so as to " 'impress the factfinder with the importance of the decision’ ” (Matter of Storar, supra, at 379, quoting from Addington v Texas, 441 US 418, 427), and it " ' "forbids relief whenever the evidence is loose, equivocal or contradictory” ’ ” (see, Matter of Storar, supra, at 379, quoting from Backer Mgt. Corp. v Acme Quilting Co., supra, at 220). That the evidence *350merely preponderates in favor of the patient’s exercise of his or her right to refuse medical treatment is not sufficient (see, Matter of Storar, supra, at 379).
In the instant case there was testimony by Mrs. O’Connor’s friend and former co-worker James Lampasso, that in 1969 his father was dying of brain cancer. Mrs. O’Connor’s husband had previously died under similar circumstances. Mr. Lampasso had a conversation with Mrs. O’Connor about his father’s illness, during which she told him that she would "never want to be a burden on anyone” and would never want "to lose [her] dignity” before she passed away. He further testified that Mrs. O’Connor also indicated that if she became totally incapacitated, nature should be allowed to take its course and artificial means should not be used to prolong her life. He added that she had said that it was "monstrous” to keep someone alive by "artificial means” if he or she was not going to get better. Mr. Lampasso, who stated that he had last discussed the issue with Mrs. O’Connor in 1973 or 1974, acknowledged, however, that at no time did Mrs. O’Connor ever mention any specific type of artificial life support.
Helen A. Hall, Mrs. O’Connor’s daughter, testified that in November 1984, her mother had been hospitalized as a result of congestive heart failure, and that following her release from the hospital she had told her daughters that if she were ever hospitalized again she would not want "any sort of intervention” or "any sort of life support systems” to "maintain or prolong her life.” However, Mrs. Hall could not state with any certainty what her mother meant by the term "life support system” and, indeed, when asked if she knew what her mother would want if her choices were to have a nasogastric tube inserted or to die of thirst or hunger, Mrs. Hall responded, "No, I don’t”. Joan Fleming, Mrs. O’Connor’s other daughter, agreed with her sister that their mother had expressed a desire to forego artificial "life support”, but similarly admitted that she did not know whether the use of that term was intended by Mrs. O’Connor to include artificial means of hydration and nourishment.
While Mrs. O’Connor’s daughters contend that their mother’s statements, when competent, evinced a clear expression to forego the use of any artificial means of life support, their actions following their mother’s admission to the hospital demonstrate, to the contrary, that they did not know whether, or truly believe that, their mother’s desires included the withdrawal of intravenous feeding and the withholding of a *351nasogastric feeding tube. Mrs. O’Connor was admitted to the Westchester County Medical Center on June 20, 1988, at which time the intravenous feeding was immediately commenced. Although Mrs. O’Connor’s daughters were aware of the fact that their mother was being fed intravenously, they never requested termination of that procedure nor did they voice an opinion to the effect that their mother would not want to be so fed. The intravenous feeding continued without objection for approximately one month prior to the commencement of the court hearing on the Medical Center’s application and, even then, Mrs. O’Connor’s daughters did not request the withdrawal of intravenous feeding. It was not until the Trial Judge, toward the end of the hearing, suggested that he might be amenable to the granting of such relief that they finally applied therefor.
In previous cases where the discontinuance of artificial life support has been authorized there has been unequivocal evidence that the patient, when competent, had carefully reflected upon the subject, clearly expressed his views and concluded not to have his life prolonged by life preserving medical means under specific circumstances (see, Matter of Eichner v Dillon, 52 NY2d 363, decided with Matter of Storar, supra). In Eichner, Brother Joseph Fox suffered substantial brain damage as a result of cardiac arrest during routine surgery. He lost his ability to breathe spontaneously and was placed on a respirator. The director of the religious society of which Brother Fox was a member applied to be appointed committee for his person and thereafter asked for an order directing the removal of the respirator. At the hearing the evidence indicated that Brother Fox had first expressed his views regarding artificial life support in 1976 when the Karen Ann Quinlan case (Matter of Quinlan, 70 NJ 10, 355 A2d 647) was receiving much publicity. During formal discussions of the issue conducted by his religious order, Brother Fox had expressed the view that he would not want a respirator used if he was ever in similar circumstances to Ms. Quinlan, who was in a coma and being maintained on a respirator. Several years later, and only a few months before his hospitalization, Brother Fox reaffirmed those views. The Court of Appeals concluded that Brother Fox’s statements were "obviously solemn pronouncements and not casual remarks” (Matter of Eichner, supra, at 380) and that there was "no need to speculate as to whether he would want this particular medical procedure to be discontinued under [the] circumstances” (Mat*352ter of Eichner, supra, at 380) since what had occurred to him was nearly "identical to what happened in the Karen Ann Quinlan case, which had originally prompted his decision” (Matter of Eichner, supra, at 380).
Similarly, in Matter of Delio v Westchester County Med. Center (129 AD2d 1, 6, supra), the patient, Daniel Delio, was a "markedly opinionated individual with clearly expressed ideas and strong views on the subject of maintaining an incompetent * * .* person on life-sustaining mechanisms”. Although he had not executed a living will, Mr. Delio had "extracted” promises from his wife that if he were ever in a comatose condition she would take "every possible step to prevent the preservation of his life by artificial means” (Matter of Delio v Westchester County Med. Center, supra, at 6, 7). The Delio case, like the instant one, involved a request to discontinue the use of a feeding tube. However, in Delio, the patient had in fact expressed his view that it was "horrible” and "appalling” to keep a person alive "in a vegetative state by artificial infusions of medication and nutrition” (Matter of Delio v Westchester County Med. Center, supra, at 7).
In the case before us, the evidence of Mrs. O’Connor’s views with regard to the use of medical means of hydration and nourishment is, at best, equivocal and does not, in my judgment, rise to the required clear and convincing level of proof. While Mrs. O’Connor may have expressed a desire to forego the use of artificial means of life support, there was no indication that she had carefully reflected on the subject (see, Matter of Alderson [Kimbrough], NYLJ Aug. 9, 1988, at 18, col 2). While Mrs. O’Connor’s statements may not have been "casual remarks”, they were made at time when she had recently experienced the loss of a loved one or shortly after her own hospitalization and may have reflected an emotional reaction to a perceived fear rather than a solemn pronouncement or clearly expressed decision regarding a future course of medical treatment. And the failure of Mrs. O’Connor’s daughters to object to commencement, and continuance, of intravenous feeding until prompted by the court indicates that they themselves were not fully cognizant of their mother’s intentions.
While I do not question the sincerity of Mrs. O’Connor’s daughters in their effort to give effect to what they may believe are their mother’s wishes, the testimony presented on this record is simply not that clear, positive or substantial as to lead me to conclude that Mrs. O’Connor, under her present *353condition and circumstances, would refuse hydration and nourishment by artificial means. Accordingly, I would reverse the judgment appealed from, on the facts, grant the Medical Center’s petition for permission to insert a nasogastric feeding tube, and deny the respondents’ application to discontinue intravenous feeding.