dissenting:
The guardian in the present case, appointed by the court under the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1991, ch. 37, par. 801— 1 et seq.), seeks the authority to consent to the placement of a “do not resuscitate” (DNR) order on the medical charts of his ward, C.A., an infant adjudged abused and neglected who was born prematurely and diagnosed as infected by the human immunodeficiency virus (HIV) when the baby was less than a year old. The majority holds that the guardian should consent to the placement of a DNR order on the medical charts of C.A. at such time as the treating physicians find it to be appropriate based on her terminal condition. 236 Ill. App. 3d at 612.
In so ruling, the majority relies upon the supreme court’s decisions in In re Estate of Longeway (1989), 133 Ill. 2d 33, 549 N.E.2d 292, and In re Estate of Greenspan (1990), 137 Ill. 2d 1, 558 N.E.2d 1194. Although declining to apply the provisions of the Health Care Surrogate Act (Ill. Rev. Stat. 1991, ch. 1101/2, par. 850 — 1 et seq.), which became effective shortly after the trial court’s order was entered in the case at bar, the majority nonetheless notes the principles stated in the Act in reaching its conclusions.
I agree that Illinois law allows a court-appointed guardian under the Juvenile Court Act to withhold certain life-saving medical treatment3 in the care of a minor child under certain circumstances. I also agree that the proper standard is whether the withholding or withdrawal of a life-saving medical treatment would be in the best interests of the child.
However, I am unable to agree with the majority disposition because I find it in direct conflict with the Illinois Supreme Court’s decisions in Longeway and Greenspan. The record in the present case demonstrates without equivocation that C.A. is not “terminally ill,” as her death is not imminent and the administration of a resuscitative efforts would not, on this record, merely “prolong the dying process.” In addition, the infant is not in a permanently comatose or chronically vegetative state. She is mentally alert, interacts socially with others, and is able to breathe without mechanical intervention. Neither of the physicians who testified at the trial court’s hearing could specify when the child is likely to die, and only one doctor, Dr. Simmons, ventured the broad opinion that it would be in the infant’s best interests that a DNR order be placed on the child’s medical charts.
I also disagree with the majority’s refusal to apply the provisions of the Health Care Surrogate Act. The trial court retains jurisdiction over the proper medical care to be administered to C.A. as long as she remains a ward of the court. The issues presented in this appeal should therefore be resolved according to the law currently in effect, i.e., the Health Care Surrogate Act. In my opinion, the trial court’s order should be vacated and the parties directed to comply with the provisions of the Health Care Surrogate Act.
This dissent will initially present my disagreement with the majority holding based on the failure of the majority to comply with the requirements enunciated in the Longeway and Greenspan cases, and will then consider the issues in this case under the Health Care Surrogate Act.
I
I am unable to agree with the majority’s reasoning in this case, as it is in direct conflict with the Illinois Supreme Court’s decisions in Longeway (133 Ill. 2d 33, 549 N.E.2d 292) and Greenspan (137 Ill. 2d 1, 558 N.E.2d 1194). In both of those decisions, the Illinois Supreme Court held that a patient has a common law right to refuse medical treatment, including artificial nutrition and hydration, and that where the patient is incompetent, this right may be exercised by a guardian as the patient’s surrogate. (Greenspan, 137 Ill. 2d at 16, citing Longeway, 133 Ill. 2d at 44-46.) The court further held that, “pending any constitutionally permissible modification of the common law by the legislature, a surrogate can exercise the right for an incompetent patient only if’ (emphasis added) (Greenspan, 137 Ill. 2d at 16) the following criteria are satisfied:
“(1) the incompetent is terminally ill ***, i.e., the patient’s condition is incurable and irreversible so that death is imminent and the application of death-delaying procedures serves only to prolong the dying process;
(2) the incompetent has been diagnosed as irreversibly comatose or in a persistently vegetative state;
(3) the incompetent’s attending physician and at least two other consulting physicians have concurred in the diagnosis;
(4) the incompetent’s right outweighs any interests of the State, as it normally does;
(5) it is ascertained, by an appropriate means — e.g., by the procedure of substituted judgment on the basis of clear and convincing evidence *** —what the incompetent presumably would have decided, if competent, in the circumstances; and
(6) a court enters an order allowing the surrogate to exercise the incompetent’s right to refuse the treatment.” Greenspan, 137 Ill. 2d at 16.
Application of these factors to the present case reveals that the majority’s disposition is in contradiction to the Illinois Supreme Court’s requirements in Longeway and Greenspan.
The first criterion enunciated by the supreme court for a surrogate to refuse to provide life-saving medical treatment is that the patient be terminally ill, i.e., the patient’s condition is incurable and irreversible and his death imminent, such that administration of the life-sustaining medical treatment serves only to prolong the dying process. In the present case, the majority determines that C.A. is “terminally ill” because she suffers from HIV. (See 236 Ill. App. 3d at 611 (wherein the majority states that “both Doctors Simmons and Gath agreed that the child was in fact under a death sentence because of her HIV infection and profoundly compromised immune system”).) The majority also finds it persuasive that the child was “critically ill” when “the DNR order was initially sought in the pending case” and observes that “[h]er condition at that time could well have been viewed as one in which death was imminent and resuscitative procedures would serve only to prolong the dying process.” (Emphasis added.) 236 Ill. App. 3d at 611.
I find the majority’s reasoning disingenuous. I cannot agree with the majority’s characterization of C.A.’s condition as terminally ill simply because she was allegedly “critically ill” when the guardian’s petition was filed. In my view, the supreme court’s decisions in Longeway and Greenspan do not allow for the withholding of a lifesaving medical treatment from every patient who is critically ill. The circumstance that cardiac or respiratory arrest will almost certainly cause the patient to die, if resuscitative efforts are not administered, does not transform a critically ill patient’s medical condition into a “terminal illness.”
In addition, I cannot agree with the majority’s characterization of C.A.’s condition as a “death sentence” because the child is HIV-infected. The health care professionals in this case testified that, based upon statistics, C.A. is not likely to live beyond her third or fourth birthday. However, at the time of the trial court’s hearing, C.A. was less than a year old; she is now almost two years of age. Consequently, C.A. has at least another year before she will be three years old. Thus, the statistical data to which the physicians referred does not support a conclusion that the infant’s death is “imminent.” In fact, not one of the physicians testified that the infant will likely die within the next few days, weeks, or months.
I would also note that the child’s treating physician, Dr. Simmons, testified that she believed a DNR order should be placed on the baby’s medical charts immediately. However, Dr. Elizabeth Gath testified that a DNR order would be appropriate if “resuscitative efforts would be futile.” There is no medical evidence in the record to suggest that resuscitation would be futile if the child suffers cardiac or respiratory arrest, given the infant’s medical condition at the time of the trial court’s hearing.
With respect to the second requirement of Longeway and Greenspan, that the patient be diagnosed as either irreversibly comatose or in a chronic vegetative state, the majority observes, “Like the elderly patients in Greenspan and Longeway, however, C.A. has no true awareness of her condition, and her age and impaired neurological development mean she will remain unable to appreciate her situation.” 236 Ill. App. 3d at 610.
I find no support in the record for the majority’s lame attempt to analogize C.A.’s medical diagnosis to the severely debilitated conditions of the patients in Longeway and Greenspan. The testimony presented to the trial court established without contradiction that C.A. is aware of her surroundings and can and does interact socially with others. It is only in the sense that the child is not able to understand the scope of her medical condition that the infant can be said to be “unaware of her condition” or that the child “will remain unable to appreciate her situation,” as characterized by the majority. However, there is no evidence in the record that demonstrates or implies that C.A’s medical condition was comparable to the medical conditions in Longeway or Greenspan, where the adult patients were in a permanently comatose or chronically vegetative state with no chance of ever regaining consciousness.
In contrast, the record here shows that C.A. is mentally alert, able to function socially, and can breathe without mechanical intervention. Her only current symptoms are that she cannot eat normally and must be fed with artificial nutrition. More importantly, she suffers no current symptoms from her status as HIV-infected. She was neurodevelopmentally delayed, but the physicians testified that they could not predict the course of her future development, and conceded that she might improve as she matures. The doctors were also unable to testify that the child’s inability to eat without artificial nutrition would continue throughout the remainder of her life, and admitted that this condition, too, might improve as the child ages. In short, C.A.’s condition is not even faintly similar to the patients in Longeway and Greenspan.
The third criterion stated by the supreme court is also lacking in the present appeal, i.e., that the patient’s attending physician, and at least two other consulting doctors, concur in the patient’s diagnosis as terminally ill. In the case before us, only two physicians testified — Dr. Simmons, the child’s treating physician, and Dr. Gath, a consulting physician. Thus, the record before us does not contain sufficient health care consensus on C.A.’s medical condition. In addition, neither of the physicians testified that C.A. is terminally ill, as that term is defined by the supreme court in Longeway and Greenspan.
The fourth factor stated by the supreme court is whether the patient’s right to forgo the life-saving medical treatment outweighs the State’s interests. In this regard, the court specified four countervailing State interests: to preserve life, protect the interests of innocent third parties, prevent suicide, and maintain the ethical integrity of the medical profession. (See Longeway, 133 Ill. 2d at 48.) The Longeway court observed that “[n]ormally, none of these interests will override a patient’s refusal” of the life-saving medical treatment. (133 Ill. 2d at 48.) This analysis assumes that the patient’s medical condition falls within the scope defined by the supreme court, i.e., that the patient is terminally ill and has been diagnosed as either irreversibly comatose or in a persistently vegetative state. Because the child here does not suffer from such a medical condition, considering the State’s countervailing interests in this regard is premature and improper.
The fifth step stated by the supreme court is to determine what the patient, if competent, would have decided under the circumstances, i.e., the substituted judgment test. I have no quarrel with the majority’s determination that the best interests of the child standard should apply to this case, rather than the substituted judgment test. (See Curran v. Bosze (1990), 141 Ill. 2d 473, 566 N.E.2d 1319.) However, I cannot agree with the majority’s decision that the DNR order will be in C.A.’s best interests.
As stated previously, the record here demonstrates that C.A. is not terminally ill, since her death is not “imminent” and the withholding of resuscitative efforts would not serve to merely “prolong the dying process.” Moreover, the infant is not in a permanently comatose or chronically vegetative state. Notwithstanding these circumstances, the majority believes that the placement of a DNR order on the child’s medical charts will be appropriate at such time as the treating physicians find it to be appropriate based on her terminal condition. (236 Ill. App. 3d at 612.) Two considerations stated by the majority appear to be particularly significant. The first of these is the circumstance that “DNR orders are constantly reviewed by medical personnel and are not necessarily permanent.” (236 Ill. App. 3d at 611.) The second is the majority’s expressed concern that judicial proceedings are time-consuming and that “because of the emergency nature of these types of decisions [with respect to whether resuscitative efforts should be withheld], courts may not be able to act fast enough.” (236 Ill. App. 3d at 614.) These considerations would be significant if C.A. were terminally ill and in a permanently comatose or chronically vegetative condition. But she quite simply is not.
I find nothing in the majority’s analysis that specifies the precise circumstances presented in this case that would warrant the majority’s failure to adhere to the precedent set down by the Illinois Supreme Court in Longeway and Greenspan requiring that the patient be terminally ill and either permanently comatose or in a chronically vegetative condition. I would note that the Health Care Surrogate Act creates an additional category of “qualifying conditions” where the patient is suffering from an incurable or irreversible condition. The Act defines this qualifying condition as an “illness or injury (i) for which there is no reasonable prospect of cure or recovery, (ii) that ultimately will cause the patient’s death even if life-sustaining treatment is initiated or continued, (iii) that imposes severe pain or otherwise imposes an inhumane burden on the patient, and (iv) for which initiating or continuing life-sustaining treatment, in light of the patient’s medical condition, provides only minimal medical benefit.” (Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 10.) However, the majority refuses to apply the Health Care Surrogate Act to this appeal. And, as noted more fully below with respect to the Health Care Surrogate Act, the additional requirements of the Health Care Surrogate Act regarding certification of the patient’s medical condition by two physicians who have personally examined the patient (see Ill. Rev. Stat. 1991, ch. 1101/2, pars. 851 — 10, 851 — 20) have not been satisfied in the case before us. Thus, there is no Illinois precedent that justifies the majority’s disposition in the instant cause.
I am troubled by the majority’s ruling because, in my judgment, it lacks sound precedential value with respect to the legality of withholding life-saving medical treatments, unnecessarily chips away at our supreme court’s pronouncements in Longeway and Greenspan, and also is in contravention to the Health Care Surrogate Act. The majority holds that the guardian should consent to the placement of a DNR order on this child’s medical charts at such time as the treating physicians find it to be appropriate based on her terminal condition. (236 Ill. App. 3d at 612.) But this holding merely begs the essential question in this case: At what point will it be “appropriate,” based on C.A.’s medical condition, to withhold resuscitative efforts? The majority never addresses this issue, and certainly now is not the “appropriate” time based upon the requirements of Longeway, Greenspan, or the Health Care Surrogate Act.
I note that the majority’s disposition is also unsupported by the cases from other jurisdictions to which the majority refers. In none of those decisions did the court authorize the entry of a DNR order on the medical chart of an alert, conscious child, whose death was not imminent and whose prospect for future neurological development was unclear. See Custody of A Minor (1982), 385 Mass. 697, 434 N.E.2d 601; In re Guardianship of Hamlin (1984), 102 Wash. 2d 810, 689 P.2d 1372; In re L.H.R. (1984), 253 Ga. 439, 321 S.E.2d 716; see generally Annot., 48 A.L.R.4th 67 (1986).
II
In my opinion, the provisions of the Health Care Surrogate Act are applicable to the issues presented in this appeal. In a proceeding under the Juvenile Court Act for the care of a minor adjudged abused or neglected and placed with the DCFS, the trial court retains on-going jurisdiction over the child so long as the minor remains a ward of the court. (See, e.g., In re Shawn B. (1991), 218 Ill. App. 3d 374, 578 N.E.2d 269.) Consequently, the trial court’s order in the instant cause determines the scope and proper exercise of the guardian’s on-going authority to consent to the withholding of resuscitative efforts in C.A.’s behalf. Although the Health Care Surrogate Act did not become effective until a few days after the trial court’s decision, the question of whether the guardian in this case is currently authorized to consent to the placement of a DNR order on C.A.’s medical charts is properly resolved by the law currently in effect, i.e., the Health Care Surrogate Act. See, e.g., Bates v. Board of Education, Allendale Community Consolidated School District No. 17 (1990), 136 Ill. 2d 260, 555 N.E.2d 1; Rios v. Jones (1976), 63 Ill. 2d 488, 348 N.E.2d 825.
In the Health Care Surrogate Act, the Illinois General Assembly enacted comprehensive guidelines for the circumstances and procedures under which a life-saving medical treatment may lawfully be withheld or withdrawn in the medical care for all persons in this State. (Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 1 et seq.; see generally Fatum, Kane, and LeBlang, A Review of the Illinois Health Care Surrogate Act, 80 Ill. Bar J. 124 (1992).) The Health Care Surrogate Act recognizes the “fundamental right” of all individuals to forgo a life-sustaining medical treatment under certain circumstances, without regard to the person’s failure or inability to execute a living will or power of attorney for health care, and regardless of whether the person lacks the decisional capacity to choose to forgo a life-sustaining medical treatment. (Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 5(a).) Its purpose is to establish a process for private decision making, without prior judicial approval, for the withdrawal or withholding of life-saving medical treatment. (Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 5(b).) Its terms explicitly apply to the rights of a minor to forgo a life-saving medical treatment under the pertinent requirements of the statute. See, e.g., Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 55.
A. POWERS OF JUVENILE COURT ACT GUARDIAN UNDER HEALTH CARE SURROGATE ACT
Based upon the pertinent provisions of the Health Care Surrogate Act, I conclude that a court-appointed guardian under the Juvenile Court Act is granted the power to act as a surrogate decision maker on behalf of the guardian’s minor ward, and to decide whether a lifesaving medical treatment should be withheld or withdrawn in the minor’s medical care.
The Health Care Surrogate Act sets forth a prioritized list of persons who may qualify as surrogate decision maker on behalf of a patient who lacks decisional capacity and suffers from a qualifying condition. (See Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 25(a).) With respect to a patient who is an unemancipated minor and has no spouse or children, this listing of priority is: (1) the child’s guardian of the person; (2) either parent of the child; (3) any adult brother or sister of the patient; (4) a close friend of the patient; and (5) the child’s guardian of the estate. Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 25(a).
The Act defines a “guardian” as “a court appointed guardian of the person who serves as a representative of a minor or as a representative of a person under legal disability.” (Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 10.) Although this definition of “guardian” does not explicitly refer to a court-appointed guardian under the Juvenile Court Act, the inclusion of a court-appointed guardian under the Juvenile Court Act is consistent with the objectives of the Health Care Surrogate Act. The fundamental purpose of the Health Care Surrogate Act is to set forth a comprehensive scheme allowing for private decision making in health care treatments without a prior court determination, in order to preserve the dignity of the patient and to relieve the anguish associated with such decisions. In view of the comprehensive purpose of the statute, I do not believe that our legislature intended to deprive children, who have been adjudged abused or neglected, of the benefits of the Health Care Surrogate Act.
Moreover, recognition of such a power in a court-appointed guardian under the Juvenile Court Act is consistent with the broad powers conferred on a guardian for a child who has been adjudged abused or neglected. The Juvenile Court Act defines “guardianship of the person” as “the duty and authority, subject to residual parental rights and responsibilities, to make important decisions in matters having a permanent effect on the life and development of the minor and to be concerned with his or her general welfare.” (Ill. Rev. Stat. 1991, ch. 37, par. 801 — 3(8).) The Act further states that this authority “in-eludes but is not necessarily limited to *** the authority to consent to *** a major medical, psychiatric, and surgical treatment." (Emphasis added.) Ill. Rev. Stat. 1991, ch. 37, par. 801 — 3(8)(a).
The trial court and the court-appointed guardian properly took into, account the wishes of C.A.’s biological parents. In so doing, the guardian preserved the parent’s residual rights and responsibilities under the Juvenile Court Act (see Ill. Rev. Stat. 1991, ch. 37, par. 801 — 3(13)) as well as their right to notice under the Juvenile Court Act. See Ill. Ann. Stat., ch. 37, par. 801 — 5 (Smith-Hurd 1990) (as amended effective July 1, 1992); see also Ill. Rev. Stat. .1991, ch. 1101/2, par. 851 — 10 (defining “parent” under Health Care Surrogate Act as “person who is the natural or adoptive mother or father of the child and whose parental rights have not been terminated by a court of law”); Santosky v. Kramer (1982), 455 U.S. 745, 753, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394-95 (“fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life”).
B. PROPRIETY OF DNR ORDER UNDER HEALTH CARE SURROGATE ACT
Under the Act, the withholding or withdrawal of a life-saving medical treatment may be authorized where a patient suffers from a “qualifying condition.” The statute defines this term as follows:
“the existence of one or more of. the following conditions in a patient certified in writing in the patient’s medical record by the attending physician and by at least one other qualified physician:
(1) ‘Terminal condition’ means an illness or injury for which there is no reasonable prospect of cure or recovery, death is imminent, and the application of life-sustaining treatment would only prolong the dying process.
(2) ‘.Permanent unconsciousness’ means a condition that, to a high degree of medical certainty, (i) will last permanently, without improvement, (ii) in which thought, sensation, purposeful action, social interaction, and awareness of self and environment are absent, and (iii) for which initiating or continuing life-sustaining treatment, in light of the patient’s medical condition, provides only minimal medical benefit.
(3) ‘Incurable or irreversible condition’ means an illness or injury (i) for which there is no reasonable prospect of cure or recovery, (ii) that ultimately will cause the patient’s death even if life-sustaining treatment is initiated or continued, (iii) that imposes severe pain or otherwise imposes an inhumane burden on the patient, and (iv) for which initiating or continuing life-sustaining treatment, in light of the patient’s medical condition, provides only minimal medical benefit.” Ill. Rev. Stat. 1991, ch. 1101/2, par. 851-10.
The record of the trial court’s proceedings in the case before us does not contain sufficient evidence to determine whether C.A.’s medical condition fell within one of the qualifying conditions stated in the Health Care Surrogate Act. Under the Act, when a patient suffers from a qualifying condition, the treating physician must certify in writing, in the patient’s medical records, the patient’s diagnosis and prognosis for recovery. (Ill. Rev. Stat. 1991, ch. 1101/2, pars. 851 — 10, 851 — 20.) A second qualified physician, who has personally examined the patient, must also concur in the diagnosis and prognosis of the patient’s medical condition as that governed by one of the qualifying conditions stated in the Act. Ill. Rev. Stat. 1991, ch. 1101/2, par. 851— 10 (defining “qualified physician” as a physician licensed to practice medicine in Illinois “who has personally examined the patient”); see also Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 20.
At the trial court’s proceedings, only one physician, Dr. Simmons, testified that she had personally examined the child. The remaining physician, Dr. Gath, testified that she had only reviewed the infant’s medical charts. In order to justify the placement of a DNR order on C.A.’s medical charts, it would be necessary for the child’s treating physician, as well as one other physician who has personally examined the infant, to certify in the minor’s medical charts that she suffers from one of the qualifying conditions stated in the Act. Because the record does not demonstrate that this requirement has been satisfied, I would vacate the trial court’s order with directions that the parties comply with the provisions of the Health Care Surrogate Act.
I note that additional terms of the Health Care Surrogate Act would also be applicable in determining whether resuscitative efforts should be withheld. For example, under the Act, the surrogate’s decision to authorize the withholding or withdrawal of a life-saving medical treatment must be stated to the treating physician and at least one adult witness. (Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 20(d).) The physician must then set forth, in the patient’s medical records, the surrogate’s decision and any discussion with respect thereto, and the adult witness must sign the document. Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 20(d).
According to the Act, a determination that the patient suffers from a qualifying condition “creates no presumption regarding the application or non-application of life-sustaining treatment,” but rather provides the circumstances necessary for the surrogate decision maker’s consideration of whether to forgo a life-sustaining treatment. (III. Rev. Stat. 1991, ch. 1101/2, par. 851 — 10.) In reaching this decision, “the surrogate shall weigh the burdens on the patient of initiating or continuing life-sustaining treatment against the benefits of that treatment.” (Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 10.) In addition, where the patient is a minor, the surrogate “shall take into account any other information, including the views of family and friends, that the surrogate decision maker believes the patient would have considered.” (Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 20(b)(1).) Because of the trial court’s on-going jurisdiction over the child’s care and treatment, the court should be advised of the decision reached by these persons with respect to the placement of the DNR order on the child’s chart. See Ill. Rev. Stat. 1991, ch. 37, par. 802 — 28.
Although not mentioned by the parties in the present case, I note that the range of life-saving medical treatments which may lawfully be withheld or withdrawn in the instant cause may not be as broad as that applicable to an adult patient. The Health Care Surrogate Act defines a “life-saving medical treatment” as follows:
“any medical treatment, procedure, or intervention that, in the judgment of the attending physician, when applied to a patient with a qualifying condition, would not be effective to remove the qualifying condition or would serve only to prolong the dying process.” Ill. Rev. Stat. 1991, ch. 1101/2, par. 851— 10.
The Act further provides that a life-saving medical treatment may include, but is not limited to, “assisted ventilation, renal dialysis, surgical procedures, blood transfusions, and the administration of drugs, antibiotics, and artificial nutrition and hydration.” Ill. Rev. Stat. 1991, ch. 1101/2, par. 851-10.
However, the Health Care Surrogate Act further provides that nothing therein “supersedes the provisions of 45 C.F.R. 1340.15 concerning the provision of ‘appropriate’ nutrition, hydration, and medication for neonates.” (Ill. Rev. Stat. 1991, ch. 1101/2, par. 851 — 40.) This latter provision is a reference to the Child Abuse Prevention and Treatment Act (42 U.S.C. §5101 et seq. (1988)) and its implementing regulation (45 C.F.R. §1340.15 (1991)), which precondition Federal funding for child abuse prevention and treatment programs upon State adoption of procedures or programs for the prompt notification of “suspected medical neglect (including instances of withholding of medically indicated treatment from disabled infants with life-threatening conditions)” and the enactment of appropriate State laws to permit “the State child protective service system to pursue any legal remedies *** as may be necessary to prevent the withholding of medically indicated treatment from disabled infants with life-threatening conditions.” 42 U.S.C. §§5106a(b)(10)(B), (b)(10)(C) (1988).
Under the applicable implementing regulation for this provision in the Federal Child Abuse Prevention and Treatment Act, an infant is defined as a child under the age of one year. (45 C.F.R. §1340.15(b)(3)(i) (1991).) However, the regulation also advises that its terms “should be consulted thoroughly in the evaluation of any issue of medical neglect involving an infant older than one year of age who has been continuously hospitalized since birth, who was born extremely prematurely, or who has a long-term disability.” (Emphasis added.) (45 C.F.R. §1340.15(b)(3)(i) (1991).) In addition, the regulation provides in pertinent part as follows:
“The term ‘withholding of medically indicated treatment’ means the failure to respond to the infant’s life-threatening conditions by providing treatment (including appropriate nutrition, hydration, and medication) which, in the treating physician’s (or physicians’) reasonable medical judgment, will be most likely to be effective in ameliorating or correcting all such conditions, except that the term does not include the failure to provide treatment (other than appropriate nutrition, hydration, or medication) to an infant when, in the treating physician’s (or physicians’) reasonable medical judgment any of the following circumstances apply:
(i) The infant is chronically and irreversibly comatose;
(ii) The provision of such treatment would merely prolong dying, not be effective in ameliorating or correcting all of the infant’s life-threatening conditions, or otherwise be futile in terms of the survival of the infant; or
(iii) The provision of such treatment would be virtually futile in terms of the survival of the infant and the treatment itself under such circumstances would be inhumane.” (45 C.F.R. §1340.15(b)(2) (1991).)
The regulation includes an appendix giving detailed explanations for its provisions, including those quoted above. See 45 C.F.R. Appendix to Part 1340 (1991).
I recognize that the guardian in the present case has not sought the authority to withdraw artificial nutrition or hydration from the minor child here. However, the parties and the trial court are cautioned of the significance of these provisions in the Federal statute and its implementing regulations.
C. CONSTITUTIONALITY OF HEALTH CARE SURROGATE ACT
The GAL contends that the Health Care Surrogate Act is unconstitutional, as a violation of procedural due, process, because it does not require prior judicial intervention and approval of a guardian’s decision to consent to the withdrawal or removal of a life-saving medical treatment for the ward. I cannot agree with this argument. Initially, as explained more fully above, the Act requires specific factual findings by the appropriate health care professionals, as well as consultation with persons committed to and interested in the child’s care and welfare. See Ill. Rev. Stat. 1991, ch. HOVa, pars. 851 — 10, 851 — 20.
In addition, the Health Care Surrogate Act contains detailed provisions for the possibility of dispute among various persons who are or could be designated as surrogate decision makers. If a guardian has already been appointed, challenge of the guardian’s decision may be had in the court where such appointment of guardianship was granted. See Ill. Rev. Stat. 1991, ch. IIOV2, par. 851 — 55.
In the case before us, the trial court could resolve a dispute between the appropriate persons regarding C.A.’s care and treatment, upon the filing of a supplemental petition raising such issue. (See Ill. Rev. Stat. 1991, ch. 37, par. 802 — 13.) In considering whether the lifesaving medical treatment should be withheld or withdrawn, the court must consider the best interests of the child. (See, e.g., Ill. Rev. Stat. 1991, ch. 37, par. 802-13; Ill. Rev. Stat. 1991, ch. 1101/2, par. 850-20.) In accordance with Illinois Supreme Court precedent, the applicable standard of proof is that of clear and convincing evidence. See Greenspan, 137 Ill. 2d at 18; Longeway, 133 Ill. 2d at 51.
In considering the sufficiency of the due process protections afforded by a State statute, it is necessary to balance the private interest affected by the official action, “ ‘the risk of an erroneous deprivation of such interest *** and the probable value, if any, of additional or substitute procedural safeguards’ ”; and the State’s interest, “ ‘including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ ” Parham v. J.R. (1979), 442 U.S. 584, 599-600, 61 L. Ed. 2d 101, 117, 99 S. Ct. 2493, 2502-03, quoting Mathews v. Eldridge (1976), 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903.
As applicable to the case before us, the private interests involved in this appeal are the minor’s right to adequate medical treatment and her right to forgo a life-saving medical treatment that is not in her best interest. An erroneous deprivation of her right to adequate medical treatment may cause her to suffer either death or a diminished quality of life; an erroneous deprivation of her right to forgo a life-saving medical treatment may cause her to unnecessarily continue to live under inhumane circumstances.
The additional safeguard suggested by the GAL, i.e., prior judicial approval, could well hinder, rather than enhance, the minor’s rights in the present case. Although the decision to withhold resuscitative efforts must sometimes be made quickly, judicial proceedings are not well suited or equipped for such short-notice decision making. This is one of the concerns the legislature considered in providing for such decisions to be made without prior judicial approval whenever possible. Given the Act’s goal of permitting private decision making, the inherent shortcomings in requiring prior judicial approval, and the potential that judicial approval could easily hamper rather than help the minor patient’s on-going and timely medical care, I am unable to conclude, on the record before us, that the failure to require prior judicial intervention would violate the procedural due process rights of C.A.
The GAL also contends that the statute violates procedural due process because it does not require that the treating physician, and one other physician who has personally examined the patient, certify that they have determined, by clear and convincing evidence, that the patient suffers from one of the qualifying conditions enumerated in the Health Care Surrogate Act. In addition, the GAL asserts that the Health Care Surrogate Act violates principles of equal protection because it provides for different degrees of medical certainty with respect to each of the three qualifying conditions stated in the statute. I find these arguments to be premature. Because the appropriate physicians in this case have not certified that C.A. suffers from any of the qualifying conditions stated under the Health Care Surrogate Act, the GAL’s arguments are speculative, and I decline to consider them in this appeal.
For the reasons stated, I am unable to concur in the majority’s disposition, and respectfully dissent.
I note that the issue in the instant case does not involve the withholding of artificial nutrition, hydration, or medication. Federal law requires the administration of these measures to an infant, irrespective of whether the child is in a comatose condition, a permanently vegetative state, or is terminally ill. See 42 U.S.C. §§5106(b)(1), 5106g(10) (1988); 45 C.F.R. §1340.15 (1991).