I dissent from the majority opinion for the reasons that follow. First, the present case is moot. A case is moot when a final determination has no practical effect upon the existing controversy.State ex rel. McDonald v. Douglas Cty. Cir. Ct., *Page 95 100 Wis.2d 569, 572, 302 N.W.2d 462 (1981). L.W. passed away while his case was pending on appeal. Consequently, a final determination has no practical effect upon L.W.'s controversy. Although this court has the authority to decide an issue when a matter has become moot as to the parties before it, I believe we should not have granted the motion for continuation after his death.1
I also believe that this court should not be ruling on whether to withhold life-sustaining health care.2
Ultimately, such matters should be decided by the legislature following significant public input.3 Public hearings *Page 96
would generate ideas and suggestions from health care professionals, administrators, social workers, guardians, legal professionals, and others which should be considered in developing a law that offers guidance for making difficult health care decisions on behalf of incompetent individuals in a persistent vegetative state.4
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 regarding health care decisions through a *Page 97
"living will."5 Such instructions may pertain to the withholding or withdrawal of life-sustaining procedures and artificial nutrition and hydration which physicians are bound to honor if the individual becomes incompetent. Furthermore, the Natural Death Act offers an individual certain protection. For example, life-sustaining procedures are withheld only when specified humane circumstances exist, including nutrition and protection from pain.6
This court's decision, however, does not offer such humane considerations.
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 life-sustaining medical treatment. Again, the legislature has provided individuals with protection. Section 155 provides that even if the person indicates that his or her agent is allowed to have ingested nutrition and hydration withheld or withdrawn, the instructions cannot be acted on if "the principal's attending physician *Page 98
advises that, in his or her professional judgment, the withholding or withdrawal will cause the principal pain or reduce the principal's comfort." See sec.155.20(4). Again, similar considerations are not given to incompetents in this court's decision.
The majority's lack of foresight in offering protection to incompetent individuals supports the need for the legislature to conduct hearings and write a comprehensive law with guidelines, safeguards, and humane considerations.7 Studies can be utilized in deciding whether the withdrawal of nutrition and hydration causes discomfort or pain.8 In the present case, the majority offers no data suggesting that an individual in a persistent vegetative state will not experience discomfort or pain when his/her body is dehydrating or starving to death. In fact the majority states, "it is difficult to view *Page 99
nourishment as anything but normal and essential human care." Majority op. at ___.
The majority labels death by dehydration or starvation as a "dignified and natural death [which] may outweigh the interest of maintaining a physiological life as long as medically possible." Majority op. at — . It surely is not a warranted conclusion from the record in this case where the man died before the guardian's decision could be tested. Only health care providers who have observed an individual dying from dehydration or starvation can state whether the death is dignified and natural. Health care providers can offer such helpful information at legislative hearings.
I believe the majority's assumption that an individual's right to refuse unwanted life-sustaining medical treatment extends to artificial nutrition and hydration is unwarranted and misconceived. First of all, the United States Supreme Court has not directly ruled on the subject.9
Even the majority states that "[i]n Cruzan, the majority of the Supreme Court assumed, but did not decide, that individuals have a right to refuse artificial nutrition and hydration." Majority op. at ___. Secondly, as described above, the Wisconsin legislature has consistently required comfort and freedom from pain in actions related to health care.
According to the majority in the present case, the guardian does not need prior authority of the court to withdraw life sustaining health care. It is recognized that the decision may be reviewed by the court at the insistence *Page 100
of a party or parties in interest. However, the majority fails to define "parties in interest."10 In L.W.'s case, the guardian ad litem opposed withdrawing food and water. Without the guardian ad litem, the case never would have been reviewed in court since the incompetent had no family or friends to demand the court to review the guardian's decision.
Finally, I dissent because this is a poor case for the court to rule on this life and death issue due to the premature diagnosis of L.W.'s condition. L.W. was diagnosed as being in a persistent vegetative state within four weeks after he suffered cardiac arrest. For an accurate diagnosis, it is conceded it should be made no earlier than three months after the commencement of the persistent vegetative state. Moreover, the trial court heard no testimony regarding L.W.'s actual condition which must be a requirement if the matter gets to court. These actions may encourage a premature diagnosis while a decision is proceeding.11 *Page 101
Presumptions favoring life should continue to control life and death decisions until legislative guidelines are formulated. The circumstances and tests required in a decision to remove life sustaining health care, the burden of proof necessary, notice of the hearing to decide removal of life sustaining procedures to family, friends and other necessary parties, and which doctors should be on a committee to recommend the withdrawal of life sustaining care should be left to the legislature to decide following extensive studies and hearings.
Because of the aforementioned reasons, I dissent.
1 See State ex rel. Steiger v. Eich,86 Wis.2d 390, 391-92, 272 N.W.2d 380 (1978) (stating that the court has the authority to decide an issue when a matter has become moot as to the parties before it). This court granted the motion for continued prosecution by the guardian ad litem despite the death of L.W. I was a dissenting vote to that motion as shown by Wisconsin Supreme Court Order dated April 19, 1991.
2 In
In Matter of Guardianship of Eberhardy,102 Wis.2d 539, 307 N.W.2d 328 (1981), we declined to exercise the court's authority to make a determination of whether it was in Joan Eberhardy's best interest to be sterilized rejecting the best interest analysis. The court looked for an "authoritative declaration of public policy to guide the exercise of that irreversible discretionary act."
Id. at 568. But here, the court applies its own analysis for terminating life. Under the court's strained decision, life or death will depend on the subjective attitude of guardians. The court labels it a decision in good faith. However, the constitutional right of the incompetent individual to refuse unwanted medical treatment belongs to the individual and not the subjectivity of a guardian. This is the way it should remain until the legislature determines the appropriate criteria for giving a guardian the right to end the ward's life.
3 See Fidelity Savings Bank v. Aulik,252 Wis. 602, 32 N.W.2d 613 (1948) (stating that questions of public policy are primarily for the legislature);
seealso Eberhardy, 102 Wis.2d at 570 (stating that a court is not an appropriate forum for making policy in certain sensitive areas). Other state legislatures have enacted laws dealing with life-sustaining treatment. Those states include Illinois (Ill. Laws of the 87th General Assembly 1991 Session, Public Act 87-749, House Bill No. 2334); Iowa (Iowa Code chapter 144A (1991)); Maine (Me. Rev. Stat. Ann. tit. 18-A, sec. 5-707 (1991)); and Louisiana (La. Rev. Stat. Ann. sec. 40:1299.58.1 (1992)). These laws address the problem of withdrawing food and water in great detail and offer burdens of proof, objective standards for making such decisions and indicate exactly who should make decisions on behalf of the patient.
4 Willed death is not a personal liberty protected by the United States Constitution or the Wisconsin Constitution. The state has an interest in protecting life. Only by statute establishing living wills or power of attorney for health care has Wisconsin recognized the statutory right of individuals to not receive nonorally ingested nutrition and hydration. The legislature's failure to act in a specific circumstance of human activity does not mean that it must be determined as a matter of law in this court. The legislature has acted in related areas, so it can be expected it will legislate in the area of termination of life for incompetents.
5 The majority extends the right to refuse all unwanted life-sustaining medical treatment to competent as well as incompetent individuals. There is a difference, however, between decision making of competent and the incompetent. The former can change their minds as to the treatment or lack of treatment while this choice is not available to the incompetent.
6 Life-sustaining procedures are asked to be withheld only with the following: a. The continuation of nutritional support and fluid maintenance; and b. The alleviation of pain by administering medication or other medical procedure. Section 154.03(2)(b)1, Stats. 1989;
see also
ch. 154 as amended December 5, 1991.
7 The trial court adopted the best interest test and set forth 12 criteria to guide the guardian's best interest determination. The majority does not adopt the criteria with good reason; however, the court does not replace them with a test other than good faith. When the state's interest is to preserve life, the burden to end it should be at least clear and convincing. Without such a standard, a circuit court will be hard pressed to review the guardian's order.
8 It has been stated that "[b]ecause pain is a private, personal experience, it is impossible . . . to know precisely what someone else's pain feels like." McQuillen,
Can People Who AreUnconscious or in the "Vegetative State" Perceive Pain? 7 Issues in Law Med., at 373, 380 (1991) (quoting Melzack,
NeuropsychologicalBasis of Pain Measurement, 6 Advances Pain Res. Therapy (1984) at 323, 335 (1984)). Nevertheless, studies have been conducted in an attempt to recognize and measure pain.
See McQuillen,
supra, 380-81. These studies "lend greater credence to a belief in autoregulation of pain at levels below the cortex."
Id. at 381.
9 Cruzan v. Director, Missouri Dept. of Health, ___ U.S. ___, 110 S. Ct. 2841 (1990), a case cited by the majority, dealt with the rights of competent person's protection of the Fourteenth Amendment liberty interest in refusing unwanted medical treatment.
Cruzan lends no insight to the test or rule for incompetent persons.
10 The majority recites in footnote 20 definitions of parties in interest from Guidelines for State Court Decision Making in Authorizing or Withholding Life-Sustaining Medical Treatment at 37. The majority also cites sec. 880.01(6), Stats., defining an interested person. However, the majority does not say that those are the proper parties in interest to be notified for a hearing determining the right to discontinue life-sustaining medical treatment. This is another reason I would have the legislature determine the total list of parties in interest to be notified for this hearing and whether the persons listed in the guidelines and statute are the limit of "parties in interest."
11 Interestingly, neither the American Academy of Neurology nor the American Medical Association has suggested laboratory tests that can reliably confirm that a patient's vegetative state is irreversible.
See De Giorgio Lew,
Consciousness, Coma,and the Vegetative State: Physical Basis and Definitional Character, 6 Issues in Law Med. at 361, 370 (1991). Drs. Christopher M. De Giorgio and Mark F. Lew state: There is no reliable EEG pattern specific for the vegetative state. Another test, called the somatosensory evoked response (SER), is predictive of poor outcome if there is bilateral absence of the cortical potential; however, there is a possibility of false positive error. There is no universal CT or MRI abnormality absolutely diagnostic of the vegetative state. Frequently the cerebral cortex is anatomically preserved. PET scanning is a helpful research tool, available in a few centers, but is technically difficult and extremely costly. Furthermore, the published PET results are based on only a few patients. When one examines the Levy PET study, which provided at least a partial basis for the AAN's position, it is clear that at least two of the patients described (No. 4 and No. 10) had significant cognitive recovery after having been in a vegetative state for two to six months. These two patients point to the problems even experienced and well-respected experts in coma have in reliably diagnosing the persistent vegetative state. It is likely that, just as in the Levy 1987 PET study, severely disabled but awake patients will be lumped with patients who are vegetative. Also, the AAN, in its position paper, does not address the cases in the medical literature where patients in persistent vegetative states have actually regained cognition and, in a few cases, have had good recovery.
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