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This is an appeal taken on bypass pursuant to sec. 808.05, Stats., from a June 21, 1989 order of the circuit court for Eau Claire County, Gregory A. Peterson, Circuit Judge, granting L.E. Phillips Career Development Center, as guardian of L.W., the authority to consent to the withdrawal from L.W. of all life-sustaining medical treatment, including artificial nutrition and hydration. We affirm.
The issues in this case are whether an incompetent individual in a persistent vegetative state has a right to refuse life-sustaining medical treatment, including artificial nutrition and hydration, and whether a court-appointed guardian may exercise that right on the ward's behalf. We conclude that an incompetent individual in a persistent vegetative state has a constitutionally protected right to refuse unwanted medical treatment, including artificial nutrition and hydration, that a court-appointed guardian may consent to withdrawal of such treatment where it is in the "best interests" of the ward to do so, and that the guardian does not need the prior authority of the court, although that decision may be reviewed by the court at the instance of parties in interest. We stress that this opinion is limited in scope to persons in a persistent vegetative state.
The facts of this case are undisputed. On May 25, 1989, pursuant to sec. 880.33, Stats., L.E. Phillips Career Development Center, a not for profit corporation, was appointed guardian of the person and estate of L.W., a seventy-nine year old man. L.W. had a long history of chronic undifferentiated schizophrenia, and had been institutionalized since 1951. He had no close relatives or friends, and had never indicated his wishes concerning life-sustaining medical treatment to anyone. Evidence in *Page 64 the record indicates that L.W. may never have been competent.
On May 31, 1989, L.W. suffered a cardiac arrest. He was moved from the Fairchild Nursing Home to St. Francis Medical Hospital in La Crosse. Later that week, L.W.'s attending physicians informed the guardian that L.W. was in a chronic, persistent vegetative state.1 The physicians indicated that if L.W.'s condition did not improve within the following four weeks, they would request the guardian to consent to withdrawal of all life-sustaining medical treatment, including artificial nutrition and hydration, and thus occasion L.W.'s death.2 *Page 65
On June 8, 1989, the guardian petitioned the circuit court for a declaratory judgment to determine whether either the guardian or the court had the authority to consent to such withdrawal. The court appointed Paul J. Lenz to act as guardian ad litem of L.W. The guardian, guardian ad litem, St. Francis Hospital, and Eau Claire County all filed briefs in the trial court.3 The court heard oral argument from the parties regarding the legal issues involved in a withdrawal decision. The court heard no testimony regarding L.W.'s actual condition or whether L.W. ever expressed his wishes regarding medical treatment.
The trial court in its memorandum opinion concluded that a guardian has the authority to consent to withdrawal of all life-sustaining medical treatment, including artificial nutrition and hydration, without prior court order or approval, if withdrawal is determined by the guardian to be in the ward's best interests. The court set forth twelve criteria to guide the guardian's best interests determination.4 While we do not disagree *Page 66 with these criteria, we do not adopt them on this appeal for some are irrelevant to the record in this case.
The guardian ad litem appealed the trial court order, and the guardian and the Hospital cross-appealed. Helpful and detailed amicus briefs were filed by numerous organizations.
On February 3, 1991, while this appeal was pending, L.W. died of natural causes. Thus, to the extent that it can affect L.W. this action is moot. However, this court has recognized certain exceptions to the general rule of dismissal for mootness.
State ex rel. La Crosse Tribune v. Circuit Ct.,115 Wis.2d 220, 229, 340 N.W.2d 460, 464 (1983). The issue of an individual's right to refuse life-sustaining medical treatment (LSMT) is of great public importance, and is capable of repetition but likely to evade review. The number of courts which have resolved this issue despite the death of the concerned patient bears this out. SeeRasmussen by Mitchell v. Fleming, 154 Ariz. 207, 214 n. 4,741 P.2d 674, 681 (1987). Under the standards of LaCrosse Tribune we exercise our discretion to address the merits and resolve the issues presented by the facts of this case.[T]his court has held that it will retain a matter for determination although that determination can have no practical effect on the immediate parties: Where the issues are of great public importance, State v. Seymour, 24 Wis.2d 258, 261, 128 N.W.2d 680 (1964); where the constitutionality of a statute is involved, Doering v. Swoboda, 214 Wis. 481, 253 N.W. 657 (1934); where the precise situation under consideration arises so frequently that a definitive *Page 67 decision is essential to guide the trial courts, Carlyle v. Karns, 9 Wis.2d 394, 101 N.W.2d 92 (1960); where the issue is likely to arise again and should be resolved by the court to avoid uncertainty, Fine v. Elections Board, 95 Wis.2d 162, 289 N.W.2d 823 (1980); or where a question was capable and likely of repetition and yet evades review because the appellate process usually cannot be completed and frequently cannot even be undertaken within the time that would have a practical effect upon the parties, In re Marriage of Sandy v. Sandy, 109 Wis.2d 564, 566, 326 N.W.2d 761 (1982).
The first issue presented is whether an incompetent individual such as L.W. has a right to refuse medical treatment. We conclude that an individual's right to refuse unwanted medical treatment emanates from the common law right of self-determination and informed consent, the personal liberties protected by the Fourteenth Amendment, and from the guarantee of liberty in Article I, section 1 of the Wisconsin Constitution. *Page 68
In 1891, the United States Supreme Court stated unequivocally that individuals have a right to self-determination:
Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891). Judge Cardozo expanded this notion to create the doctrine of informed consent: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.
Schloendorff v. Society of New York Hospital, 211 N.Y. 125,129-30, 105 N.E. 92, 93 (1914). The logical corollary of the doctrine of informed consent is the right not to consent — the right to refuse treatment. Numerous courts have grounded the right to refuse treatment in whole or in part on the common-law right to self-determination and informed consent. See, e.g., Superintendent ofBelchertown State School v. Saikewicz, 373 Mass. 728,370 N.E.2d 417 (1977); In re Strorar, 52 N.Y.2d 363,438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied, 454 U.S. 858 (1981); and In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985).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.
The United States Supreme Court recently held that a competent individual has a protected Fourteenth *Page 69 Amendment liberty interest in refusing unwanted medical treatment. Cruzan v. Director, Missouri Department ofHealth, ___ U.S. ___, 110 S. Ct. 2841, 2851 (1990). The Court also assumed, but did not decide, that this liberty interest included the right to refuse artificial nutrition and hydration. Id. at 2852.
Article I, section 1 of the Wisconsin Constitution states:
All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.
This independent right to liberty includes an individual's choice of whether or not to accept medical treatment.
The Wisconsin legislature has recognized the right to refuse unwanted medical treatment. The Natural Death Act, ch. 154, Stats., as amended on December 5, 1991, allows competent individuals to give specific instructions (by a "living will") regarding health care decisions, including the withholding or withdrawal of life-sustaining procedures and artificial nutrition and hydration, which physicians are bound to honor if the individual becomes incompetent. The Power of Attorney for Health Care Act, ch. 155, Stats., enacted in 1989, allows competent individuals to designate a health care agent to make health care decisions on their behalf should they become incompetent. These decisions include the withholding or withdrawal of all life-sustaining *Page 70 medical treatment. The statutes specifically provide that the failure to execute a living will or a power of attorney for health care creates no presumption regarding an individual's consent to the use of life-sustaining medical treatment or feeding tubes. See secs. 154.11(5) and 155.70(8), Stats.
Thus, the Wisconsin legislature has declared that in this state competent persons have a legislatively sanctioned right to refuse unwanted life-sustaining medical treatment.
An issue of first impression in this state is whether the right to refuse unwanted medical treatment includes a right to refuse artificial nutrition and hydration. We recognize, as other courts have, that the provision of food and water to one incapable of oral self-nourishment raises unique concerns. Unlike most medical technological advances of a mechanistic nature, it is difficult to view nourishment as anything but normal and essential human care. It is difficult not to view the withdrawal of artificial feeding as inducing death through starvation and dehydration.5 There is however no compelling distinction between artificial feeding and other forms of medical treatment. As succinctly stated by the New Jersey Supreme Court:
Conroy, 98 N.J. at 372-373, 486 A.2d at 1236 (citations omitted). Nearly every state's final court to consider the issue has concluded that artificial feeding is medical treatment which may be refused.6 We reach the same conclusion.Once one enters the realm of complex, high-technology medical care, it is hard to shed the "emotional symbolism" of food. However, artificial feedings such as nasogastric tubes, gastrostomies, and intravenous *Page 71 infusions are significantly different from bottle-feeding or spoonfeeding — they are medical procedures with inherent risks and possible side effects, instituted by skilled health-care providers to compensate for impaired physical functioning. Analytically, artificial feeding by means of a nasogastric tube or intravenous infusion can be seen as equivalent to artificial breathing by means of a respirator. Both prolong life through mechanical means when the body is no longer able to perform a vital bodily function on its own.
In Cruzan, the majority of the Supreme Court assumed, but did not decide, that individuals have a right to refuse artificial nutrition and hydration. Justice O'Connor, in concurrence, was more explicit:
Cruzan, ___ U.S. at ___, 110 S.Ct. at 2857 (O'Connor, J., concurring). Justice Brennan added in dissent: "The artificial delivery of nutrition and hydration is undoubtedly medical treatment." Id. at ___, 110 S.Ct. at 2866 (Brennan, J., dissenting).Artificial feeding cannot readily be distinguished from other forms of medical treatment. See, e.g., Council on Ethical and Judicial Affairs, American *Page 72 Medical Association, AMA Ethical Opinion 2.20, Withholding or Withdrawing Life-Prolonging Medical Treatment, Current Opinions 13 (1989); The Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying 59 (1987). Whether or not the techniques used to pass food and water into the patient's alimentary tract are termed "medical treatment," it is clear they all involve some degree of intrusion and restraint. . . . Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.
The Wisconsin legislature has also recognized a competent individual's right to refuse artificial nutrition and hydration. Section 154.03(1), Stats., provides in part:
Any person of sound mind and 18 years of age or older may at any time voluntarily execute a declaration, which shall take effect on the date of execution, authorizing the withholding or withdrawal of life-sustaining procedures or of feeding tubes when the person is in a terminal condition or is in a persistent vegetative state.
Also, sec. 155.20(4), Stats., provides: "A health care agent may consent to the withholding or withdrawal of *Page 73 nonorally ingested nutrition or hydration for the principal if the power of attorney for health care instrument so authorizes . . . ."
Consistent with the implied holding of the United States Supreme Court, and the specific declaration of the Wisconsin legislature, we conclude that an individual's right to refuse unwanted life-sustaining medical treatment extends to artificial nutrition and hydration.7
We further conclude that the right to refuse all unwanted life-sustaining medical treatment extends to incompetent as well as competent individuals.
*Page 74 Thompson v. Oklahoma, 487 U.S. 815, 825 n. 23 (1988). An incompetent individual does not relinquish the right to refuse unwanted treatment by virtue of incompetency.In re Guardianship of Grant, 109 Wn.2d 545, 554,747 P.2d 445, 449 (1987); Rasmussen, 154 Ariz. at 219,741 P.2d at 686 ("Other jurisdictions have unanimously concluded that the right to refuse medical treatment is not lost merely because the individual has become incompetent and has failed to preserve that right."). The existence and viability of a long established personal right does not hinge upon its prescient exercise, nor is it extinguished when one is adjudged incompetent.The law must often adjust the manner in which it affords rights to those whose status renders them unable to exercise choice freely and rationally. Children, the insane, and those who are irreversibly ill with loss of brain function, for instance, all retain "rights," to be sure, but often such rights are only meaningful as they are exercised by agents acting with the best interests of their principals in mind.
The guardian ad litem argues that this court should require clear and convincing evidence of the individual's wishes while competent concerning life-sustaining care, as set forth by the majority in Cruzan, before treatment may be withheld. We disagree. Relatively few individuals provide explicit written or oral instructions concerning their treatment preferences should they become incompetent.8 The reasons for this are undoubtedly myriad: *Page 75 ignorance, superstition, carelessness, sloth, procrastination or the simple refusal to believe it could happen to oneself. This failure to act is not a decision to accept all treatment, nor should society's increasing ability to prolong the dying process make it one. To adopt the clear and convincing standard would doom many individuals to a prolonged vegetative state sustained in a life form by unwanted, perhaps detrimental, means that are contrary to the person's best interest. Moreover the legislature in the adoption of chs. 154 and 155, Stats., carefully pointed out that failure to execute a living will or power of attorney for health care creates no presumption that the person consents to the use or withholding of life-sustaining procedures.
Thus the stated legislative policy is to leave the decision, if not declared by the patient, to be determined as a matter of common law — and the common law, where the individual was never competent or where the conduct of the individual while competent never was of a kind from which one could draw a reasonable inference upon which to make a substituted judgment, requires *Page 76 that decision to be resolved by a surrogate decision maker acting in the best interests of the incompetent.
Turning to this case, the record indicates that L.W. may never have been competent. The right to refuse unwanted treatment must also extend to those who have never been competent. While "free choice" to exercise a right is an empty option for lifelong incompetents, see Inre Guardianship of Eberhardy, 102 Wis.2d 539,573, 307 N.W.2d 881, 893 (1981), this does not strip such individuals of basic rights, nor does it render them "passive subjects of medical technology." Cruzan, ___ U.S. at ___,110 S.Ct. at 2876 (Brennan, J., dissenting). An incompetent is a ward of the state, and this state's parens patriae power requires this court to ensure that the ward's best interests are protected.9 We conclude that in some circumstances it may well be in the patient's best interests to have treatment withheld or withdrawn. A dignified and natural death may outweigh the interest of maintaining a physiological life as long as medically possible. Therefore, where it is in the best interests of an incompetent person in a persistent vegetative state to refuse life-sustaining medical treatments his or her right to refuse must be exercised by a surrogate decisionmaker.
As stated by the New York Supreme Court (Appellate Division): *Page 77
[B]y standards of logic, morality and medicine the terminally ill should be treated equally, whether competent or incompetent. Can it be doubted that the "value of human dignity extends to both"? What possible societal policy objective is vindicated or furthered by treating the two groups of terminally ill differently? What is gained by granting such a fundamental right only to those who, though terminally ill, have not suffered brain damage and coma in the last stages of the dying process? The very notion raises the spectre of constitutional infirmity when measured against the Supreme Court's recognition that incompetents must be afforded all their due process rights; indeed any State scheme which irrationally denies to the terminally ill incompetent that which it grants to the terminally ill competent patient is plainly subject to constitutional attack.Eichner v. Dillon, 73 A.D.2d 431, 464-465, 426 N.Y.S.2d 517,542-543 (N.Y.App. Div. 1980) (citations omitted) (emphasis in original). We find no reason to differentiate between the rights of the competent and incompetent. To the extent that it is possible, both must be assured the benefit of the exercise of the same constitutional right of choice.
Following the opinion of In re Quinlan, 70 N.J. 10,355 A.2d 647 (1976), cert. denied, 429 U.S. 922 (1976), courts have split on the standards applicable to surrogate decisionmaking. In Quinlan, the father of Karen Quinlan sought judicial approval to disconnect his daughter's respirator. Karen existed in a persistent vegetative state. The New Jersey Supreme Court allowed the father, as guardian, and the family the authority to disconnect the respirator if they determined that Karen would have chosen to do so in the circumstances. This "substituted *Page 78 judgment" test has been adopted by numerous courts.10
This court has heretofore refused to adopt a substituted judgment test when an incompetent's right must be exercised, if at all, by a surrogate in circumstances where there was no way a surrogate decision maker could divine what the ward would have preferred to do in the circumstance. In reGuardianship of Pescinski, 67 Wis.2d 4, 7-8,226 N.W.2d 180, 181-182 (1975); Eberhardy,102 Wis.2d at 564-67, 307 N.W.2d at 893-894. In Eberhardy, we explained:
[T]he question is not choice because it is sophistry to refer to it as such, but rather the question is whether there is a method by which others, acting in behalf of the person's best interests and in the interests, such as they may be, of the state, can exercise the decision.Id. at 566, 307 N.W.2d at 893. In this case, where L.W. did not execute a living will or power of attorney for health care instrument, and never expressed his wishes regarding life-sustaining medical treatment, and in all probability never had the competency to do so, the guardian must decide whether it is in the patient's best interests to have life-sustaining medical treatment withheld or withdrawn.11 *Page 79
Certainly the patient's wishes, as far as they can be discerned, are an appropriate consideration for the guardian. If the wishes are clear, it is invariable as a matter of law, both common and statutory, that it is in the best interests of the patient to have those wishes honored, for the patient has made the pre-choice of what he or she considers to be the best interests under the *Page 80 circumstances that arise. Where, as here, there is little or no evidence of a patient's wishes, the guardian must determine what is presently in the patient's best interests. Unlike a substituted judgment, which necessarily involves considerations of the patient's past wishes, values, feelings and beliefs, the best interests, standard focuses solely on what is currently in the patient's best interests.
Other courts considering withdrawal decisions for incompetent patients with no prior directives have also concluded that a best interests analysis is proper. InRasmussen, supra, the Supreme Court of Arizona considered whether a public fiduciary, appointed as guardian of an incompetent woman, could consent to the withdrawal and withholding of life-sustaining medical treatment. The court concluded:
Where no reliable evidence of a patient's intent exists, as here, the substituted judgment standard provides little, if any, guidance to the surrogate decisionmaker and should be abandoned in favor of the "best interests" standard.Rasmussen, 154 Ariz. at 222, 741 P.2d at 689.12 *Page 81
The President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (President's Commission) also concluded that in the absence of written or oral instructions, withdrawal and withholding decisions must be made by utilization of the "best interests" standard. Noting that in the absence of reliable evidence of patient's wishes surrogates are unable to make a valid substituted judgment, the Commission concluded:
In these situations . . . [surrogate decisionmakers] must try to make a choice for the patient that seeks to implement what is in that person's best interests by reference to more objective, societally shared criteria. Thus the best interests standard does not rest on the value of self-determination but solely on protection of patients' welfare.
President's Commission, Deciding to Forego Life-SustainingTreatment, 134-135 (1983). We also hold that in a case such as this one where there can be no reliable ascertainment of the incompetent's wishes, only the best interests standard can be applied. We are fully in accord with the circuit court's conclusion in this respect.
In the circumstances of this proceeding the guardian ad litem and others have challenged the statutory authority of a guardian to make any decision to withhold or withdraw life-sustaining medical treatment. Pursuant to ch. 880, Stats., court appointed guardians fulfill the parens patriae duty of the state to protect the best interests *Page 82 of an incompetent ward.13 Consequently, where it is in the best interests of the ward to withhold or withdraw treatment, the guardian has not only the authority to but a duty to consent to the withholding or withdrawal of treatment.
The interrelationship between chs. 155 and 880, Stats., also evidences a guardian's authority to consent to the withholding or withdrawal of treatment. Section880.33(3), Stats., states: "If the proposed incompetent has executed a power of attorney for health care under ch. 155, the court shall give consideration to the appointment of the health care agent for the individual as the individual's guardian." Coupled with sec. 155.60(2), Stats.,14 which invalidates the health care power of attorney instrument where a guardian is appointed unless otherwise ordered by the court, the clear indication is that a guardian has identical decisionmaking powers as a health care agent. To construe the sections any other way would result in an individual losing his or her expressed right to refuse treatment upon appointment *Page 83 of a guardian; such a construction would render sec.155.60(2), Stats., unconstitutional, and is rejected.
The guardian ad litem correctly asserts that a guardian is a state actor. A guardian's authority derives from the state's parens patriae power and is purely statutory. Thus, the patient must be accorded due process before the state may deprive him or her of life. U.S. Const. amend. XIV, Wis. Const. art. I, sec. 1. But to assume that withdrawing life-sustaining medical treatment deprives a ward of life begs the question.
In this case, due process initially is accorded through the guardianship appointment procedures. Section880.33, Stats., sets forth extensive procedures for the determination of incompetency and appointment of a guardian, and sec. 880.331, Stats., requires that a disinterested attorney be appointed as guardian ad litem to protect the individual's interests in the appointment procedure.
Moreover, we do not view the withdrawal of life-sustaining treatment as depriving the patient of life; rather, it "allows the disease to take its natural course." Conroy,98 N.J. at 351, 486 A.2d at 1224. See also sec. 155.70(7), Stats., which states that the withholding or withdrawal of health care "permit[s] the natural process of dying." No one can dispute that the withdrawal of treatment, especially artificial feeding, will result in the death of the patient. However, it is equally indisputable that the result is the natural death of the body, as contrasted to the unnatural prolongation of, in this case, a vegetative state. The state does not deprive an individual of life by failing to ensure that every possible technological medical procedure will be used to maintain that life.
The basic issue in this case is not whether life-sustaining medical treatment can be withdrawn, for that *Page 84 is a constitutional and common law right of a sui juris individual, the issue is how that right can be exercised when the ward, being in a persistent vegetative state, cannot presently make that decision and, under the particular facts here, may never have been competent to make the decision to refuse life-sustaining medical treatment.
In conclusion then we hold that a guardian may consent to the withholding or withdrawal of life-sustaining medical treatment on behalf of one who was never competent, or a once competent person whose conduct never was of a kind from which one could draw a reasonable inference upon which to make a substituted judgment, when:
(1) the incompetent patient's attending physician, together with two independent neurologists or physicians, determine with reasonable medical certainty that the patient is in a persistent vegetative state and has no reasonable chance of recovery to a cognitive and sentient life;15 and*Page 85
(2) the guardian determines in good faith that the withholding or withdrawal of treatment is in the ward's best interests, according to the objective factors outlined below.16*Page 86
In making the best interests determination, the guardian must begin with a presumption that continued life is in the best interests of the ward. Whether that presumption may be overcome depends upon a good faith assessment by the guardian of several objective factors.
Objective factors the guardian may consider include:
[T]he degree of humiliation, dependence, and loss of dignity probably resulting from the condition and treatment; the life expectancy and prognosis for recovery with and without treatment; the various treatment options; and the risks, side effects, and benefits of each of those options.Conroy, 98 N.J. at 363-364, 486 A.2d at 1231. For an incompetent patient in a persistent vegetative state, such as L.W., there may be a point at which as objectively viewed it is in his or her best interests to refuse further medical treatment. As Justice Handler of the Supreme Court of New Jersey poignantly expressed:
The presence of progressive, irreversible, extensive, and extreme physical deterioration, such as ulcers, lesions, gangrene, infection, incontinence and the *Page 87 like, which frequently afflict the bed-ridden, terminally ill, should be considered . . . . The medical and nursing treatment of individuals in extremis and suffering from these conditions entails the constant and extensive handling and manipulation of the body. At some point, such a course of treatment upon the insensate patient is bound to touch the sensibilities of even the most detached observer. Eventually, pervasive bodily intrusions, even for the best motives, will arouse feelings akin to humiliation and mortification for the helpless patient. When cherished values of human dignity and personal privacy, which belong to every person living or dying, are sufficiently transgressed by what is being done to the individual, we should be ready to say: enough.Conroy, 98 N.J. at 398-399, 486 A.2d at 1249-50 (Handler, J., concurring in part and dissenting in part).17 *Page 88
We emphasize at this point that the guardian must assess these factors from the standpoint of the patient, and should not substitute his or her own view of the "quality of life" of the ward. As the Rasmussen court explained, the guardian's determination of what is in the ward's best interests necessarily involves an assessment of "`the value that the continuation of life has for the patient," but should not involve "`the value that others find in the continuation of the patient's life . . . .'"Rasmussen, 154 Ariz. at 222 n. 23, 741 P.2d at 689, citing President's Commission, Deciding to Forego Life-SustainingTreatment, 135 n. 43. The guardian should not engage in a subjective "quality of life" determination on behalf of the ward. As explained in Conroy:
We do not believe that it would be appropriate for a court to designate a person with the authority to determine that someone else's life is not worth living simply because, to that person, the patient's `quality of life' or value to society seems negligible. . . . More wide-ranging powers to make decisions about other people's lives, in our view, would create an intolerable *Page 89 risk for socially isolated and defenseless people suffering from physical or mental handicaps.Conroy, 98 N.J. at 367, 486 A.2d at 1233.
Another possible factor to consider is the opinion of a "bioethics" or "institutional ethics" committee. Quinlan,70 N.J. at 49-51, 355 A.2d at 668-669. Increasingly, health care facilities such as hospitals and nursing homes are creating bioethics committees. In 1990, the American Hospital Association estimated that over 60 percent of United States hospitals had formed bioethics committees.18 Generally, these committees help establish hospital policies on medical-ethical issues, and advise, discuss, or consult with health care professionals, patients, and their families and representatives about medical and ethical decisions.19
The record in this case indicates that the Bioethics Committee of the Franciscan Health System unanimously concluded that it was appropriate to forego life support on a patient such as L.W. who is in a persistent vegetative state. Certainly if such a committee is available, the guardian should request it to review the decision, and should consider its opinion in determining whether it is in the patient's best interests to forego treatment.
We point out in footnote 20, infra at 92-93 that a "spouse, next of kin or close friend or associate over a significant period of time" is entitled to notice of termination of life-sustaining medical treatment procedures. *Page 90 Accordingly a guardian should if possible consider the opinion of those persons in concluding what is in the best interests of the ward.
In sum, the guardian must determine in good faith and based upon the objective criteria set forth above whether it is in the patient's best interests to accept or refuse life-sustaining medical treatment, and act accordingly.
The right to refuse treatment, when exercised by a guardian, must be balanced against relevant state interests.Cruzan, ___ U.S. at ___, 110 S.Ct. at 2851-52. Courts have identified four relevant state interests: (1) preserving life; (2) safeguarding the integrity of the medical profession; (3) preventing suicide; and (4) protecting innocent third parties.Conroy, 98 N.J. at 348, 486 A.2d at 1223.
The interest in preserving life is the most significant of the four. As stated in Cruzan:
[T]here can be no gainsaying this interest. As a general matter, the States — indeed, all civilized nations — demonstrate their commitment to life by treating homicide as serious crime.
___ U.S. at ___, 110 S. Ct. at 2852. This interest embraces both the interest in preserving the patient's life and the interest in preserving the sanctity of all life. Conroy,98 N.J. at 348, 486 A.2d at 1223. However, this interest weakens as the degree of bodily intrusion increases and the chance of recovery wanes. Rasmussen,154 Ariz. at 216-217, 741 P.2d at 683-684; Quinlan, 70 N.J. at 41,355 A.2d at 664. At a certain point, treatment serves only to prolong the dying process unnaturally, and at this point the patient's liberty interest in refusing treatment *Page 91 prevails. An unqualified state interest in preserving life irrespective of either a patient's express wishes or of the patient's best interests transforms human beings into unwilling prisoners of medical technology.
The state's interest in protecting the integrity of the medical profession is not implicated in this case. L.W.'s physicians initiated the action by conditionally (i.e., if L.W.'s condition remained unchanged for another four weeks) requesting the guardian's consent to withdraw treatment. Their actions were consistent with current medical ethics in so far as approval was sought and given by the Bioethics Committee of Franciscan Health System.Current Opinions of the Council on Ethical andJudicial Affairs of the American Medical Association 2.18, "Withholding or Withdrawing Life-Prolonging Medical Treatment" (1986); Position of the AmericanAcademy of Neurology on Certain Aspects of the Careand Management of the Persistent Vegetative StatePatient, 39 Neurology 125 (1989). Thus, a decision to withhold or withdraw treatment will not impugn the integrity of the profession. Indeed, the existence of a protected right to refuse treatment for all individuals competent or incompetent may in a sense protect the integrity of the medical profession. In the absence of such a protected right; physicians may be discouraged from attempting certain life-sustaining medical procedures in the first place, knowing that once connected they may never be removed. Conroy, 98 N.J. at 370,486 A.2d at 1234. The existence of this right will prevent premature and rash decisions to allow a patient to die, and will remove the potential conflict for the medical profession between ordinary compassion and the Hippocratic Oath. *Page 92
The third asserted state interest, preventing suicide, is also not implicated in this case. Refusing medical treatment is not suicide. In sec. 154.11(1), Stats., the legislature states specifically: "The withholding or withdrawal of life-sustaining procedures or feeding tubes from a qualified patient under this chapter does not, for any purpose, constitute suicide." Section 155.70(1)(a), Stats., likewise provides: "The making of a health care decision on behalf of a principal under the principal's power of attorney for health care instrument does not, for any purpose, constitute suicide."
The fourth asserted state interest, protecting innocent third parties, is also not implicated on the record. L.W. had no children, no immediate family, and a decision to forego treatment would affect no innocent third parties. Rasmussen, 154 Ariz. at 218, 741 P.2d at 685.
We also hold that court approval of the guardian's decision is not required. The judicial process, as noted by the Washington Supreme Court, is "an unresponsive and cumbersome mechanism for decisions of this nature."Colyer, 99 Wn. 2d at 127, 660 P.2d at 738. See alsoMatter of Jobes, 108 N.J. 394, 423-424, 529 A.2d 434,449 (1987). Court review, however, remains appropriate and available where any interested party objects to the decision of the guardian.20 Where the guardian's decision *Page 93 is challenged, the presumption is that continued life is in the best interests of the ward, and the burden rests upon the guardian to show both the existence of a persistent vegetative state to a high degree of medical certainty and that the decision to withhold or withdraw treatment is in the ward's best interests and was made in good faith.
We affirm the trial court's order that the guardian, L.E. Phillips Career Development Center, has the authority to consent to the withholding or withdrawal of all life-sustaining medical treatment, including artificial nutrition and hydration, on behalf of L.W., a ward who *Page 94 is in a persistent vegetative state, where it has determined in good faith that withholding or withdrawal of such treatment is in the ward's best interests. For the reasons stated, and because of the narrow focus of this decision, we do not herein accept the trial court criteria,supra, note 1, and hold that the best interests determination is to be made on objective criteria concerning the personal best interests of the patient.
By the Court. — Order affirmed.
"Persistent vegetative state" means a condition that reasonable medical judgment finds constitutes complete and irreversible loss of all of the functions of the cerebral cortex and results in a complete, chronic and irreversible cessation of all cognitive functioning and consciousness and a complete lack of behavioral responses that indicate cognitive functioning, although autonomic functions continue.See also Guidelines for State Court Decision Making in Authorizingor Withholding Life-Sustaining Medical Treatment, Appendix B, supra, n. 1. This is a medical decision, not a legal one, and implicates a court only to the extent that any medical opinion under appropriate circumstances is evaluated by a court. We stress the unique status of individuals in a persistent vegetative state, and the fact that this opinion is strictly limited to persons in such a condition. As the President's Commission concluded: The primary basis for medical treatment of patients is the prospect that each individual's interests (specifically, the interest in well-being) will be promoted. Thus, treatment ordinarily aims to benefit a patient through preserving life, relieving pain and suffering, protecting against disability, and returning maximally effective functioning. If a prognosis of permanent unconsciousness is correct, however, continued treatment cannot confer such benefits. Pain and suffering are absent, as are joy, satisfaction, and pleasure. Disability is total and no return to an even minimal level of social or human functioning is possible.Deciding to Forego Life-Sustaining Treatment, 181-182. Patients in a persistent vegetative state are on a completely different footing than patients with other disabilities. See alsoinfra, at 87-88 n. 17.