dissenting.
I respectfully dissent from the majority opinion because I believe the court system lacks the authority to grant the relief sought and the standard of proof required is not sufficiently high in this type of case.
This is an action for declaratory relief brought originally by Sue DeGrella’s mother seeking approval to withdraw a feeding and hydration tube from her 44 year-old daughter who has been in a persistent vegetative state for approximately 10 years. The mother sought a declaration of rights to the effect that she would be permitted by Kentucky law to substitute her judgment for that of her daughter and that she has the right to direct the discontinuation of gastrostomy tubes used to provide nourishment and water to her daughter.
This case brings into sharp focus much of the current discussion about the so-called right to die. It is of great importance to define the terms of this case and its application both specifically and generally. There is an enormous difference between the withdrawal of food and water, also called nutrition and hydration and the withdrawal of medical treatment. In my view, the majority merges the concepts by stating that the artificial feeding of a patient by a tube amounts to extraordinary medical treatment. I disagree. Sue De-Grella is not really being treated, she is being maintained through nourishment.
Withdrawal of food and water will result in death by starvation or dehydration. There is a danger in an over generalization of the specific problem presented here and its application to a broad class of people and the potential consequences arising therefrom. We must carefully consider the classes of people who could possibly be affected by this decision. 1) Sue DeGrella and her family. 2) Those in nursing homes and the handicapped in similar situations. 3) The rest of the population of Kentucky who may face a similar situation in the future. In addition, there is the ever-present problem of factoring in the economic ingredient of public taxpayer funding of Medicare and medical support for those in nursing homes or in a persistent vegetative state.
Death is a very private and personal matter between the individual and the Creator. However, as with every other human event it has an impact on other people both direct and indirect, as well as immediate and remote. Human beings are endowed by their Creator with an independent free will. Such free will can be exercised freely, subject only to moral accountability. Courts and governments have no place in such an equation.
This decision is a purely secular one. However, certain ethical values are at the very foundation of our modern civilization. They are based on the moral law and expressed through the natural and civil law. It is always a struggle for the judicial system to properly resolve such weighty questions.
The problem presented here is how does a civilized society react when an individual is incompetent to express her own wishes and her entire family and medical and hospital support believes she should be allowed to die. The individual circumstances are indeed tragic and have caused the members of the DeGrella family great anguish. More than the individual case, this situation has the potential for establishing a rule of law that could be applied to other individuals similarly situated who would have a different reaction and approach. I believe that judicial intervention into private decision-making of this sort is expensive and intrusive. The right to terminate medical treatment is not a power belonging to the judiciary to grant or withhold. This case is here only because the attending physician and the nursing home would not recognize the wishes of the family to refuse nutrition through her surrogate or guardian. There is no law requiring prior consent by any court for the exercise of such a decision. There has long been a common law right to refuse medical treatment by a competent adult. This is a question of whether food and water provided by *713a tube is an artificial means of life support. It is not medical treatment.
Sue DeGrella is unable to eat, chew or swallow. She receives food and water by means of a gastrostomy tube which has been surgically inserted in her abdomen. Without the use of the tube she would ultimately die by starvation or dehydration. She experiences no discomfort or any pain by reason of the use of the feeding tube. Although some medical literature has references to individuals who have recovered from this condition at least in part, the general medical opinion is that a persistent vegetative state is irreversible and one of the witnesses testified that her chances for recovery were infinitesimal but not nil.
Sue DeGrella did not execute what is now known as a Living Will pursuant to K.R.S. 311.624 or designate a health care surrogate pursuant to K.R.S. 311.978. She could not have done so prior to her injury because these statutes did not exist at that time.
In reaching a decision based largely on a judicial interpretation of public policy as expressed by the legislature I believe it is important to consider the existing Living Will legislation in order to determine such public policy in this case. The medical evidence indicates that Sue DeGrella is not terminally ill. She would not soon die because of her injuries. Even if she were terminally ill and had a Living Will, the remedy sought here could not be granted under the terms of that statute. The withdrawal of nutrition and hydration is not authorized in a terminal case and even where the statute with its precise requirements for execution has been followed, the only reasonable interpretation of the public policy supporting the statute is that such withdrawal must necessarily be inappropriate and unauthorized in circumstances where death is not otherwise imminent, as in this case. The Living Will Act applies only to terminally ill patients.
The absence of any statute in Kentucky directly on point increased the need to resort to a careful public policy analysis. An objective review of these statutes requires a logical conclusion that the withdrawal of food and water from a nonterminally ill comatose individual violates the public policy of this State.
K.R.S. 311.978(3) provides in part that nutrition and hydration always be provided.” I believe this phrase captures the thrust of the legislative intention in the clear language expressed. In the 1992 regular session of the General Assembly, the so-called “No food and water” amendment offered to the Kentucky Living Will Statute was defeated. I believe this is further evidence that the General Assembly had a preference for providing basic necessities such as food and water.
In the circumstances of this particular case, it is very questionable if the prior statements of a now incompetent person can form a proper legal basis for a decision to withdraw nutrition and hydration from that person. There is almost unanimous testimony that Sue DeGrella had expressed her feelings against being maintained on an artificial life support system. It should be noted that none of the testimony indicated that she had specifically considered the question of the withdrawal of nutrition and hydration.
The fundamental legal issue is whether such verbal statements, regardless of the credibility of the witnesses who attest to them, can become the legal basis for the discontinuance of a life support system and specifically nutrition and hydration. This is not a new concern. See Cruzan v. Harmon, 760 S.W.2d 408 (Mo.1986); In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987).
Matters of far less importance than death or life may not legally be based on purely oral expression. Such matters include: the enforceability of various contracts under the Statute of Frauds, K.R.S. 371.010; the prohibition against Wills other than in writing, K.R.S. 394.040. Of additional concern is the obvious impossibility to really know whether the patient ever had a change of heart, either expressed or unexpressed when actually faced with a life or death decision. Here there was repeated testimony about generalized opposition to artificial life supports by the patient before she suffered her injuries.
*714In addition, there is a technical legal argument that authority to withdraw life supports is governed by agency law. Oral authority such as testified to in this case, does not meet the requirements of a durable power of appointment pursuant to K.R.S. 386.093. The common law principle is that the authority of the agent terminates upon the incapacity of the principal. Cf. Rice v. Floyd, Ky., 768 S.W.2d 57 (1989). The seriousness of this situation must be balanced and reconciled with existing laws governing existing situations which apply to all persons.
In my view, under Kentucky law neither the guardian or the family of a nontermi-nally ill patient may use substituted judgment to make a decision which results in the death of the patient. I cannot agree that a substituted judgment standard exists in Kentucky because of Strunk v. Strunk, Ky., 445 S.W.2d 145 (1969).
As noted by the trial judge in his lengthy opinion, Cruzan I supra, stated that there was "... no principal legal basis which permits the co-guardians in this case to choose the death of their ward.”
Kentucky law regarding the power of a guardian is expressed in K.R.S. 387.660(3). The authority of a guardian pursuant to the Kentucky statutes can only be exercised in limited categories for the purpose of achieving the life, health and appropriate care of the ward. A guardian is a fiduciary and it is difficult to understand any circumstances that would cause the death of a ward through the proper exercise of guardian responsibility. The right to refuse medical treatment in the case of a nonterminally ill person is a personal decision and is not the type of decision which a guardian appointed under Kentucky statutes may make on behalf of an incompetent.
Reliance on Strunk, supra, is of marginal value. This Court in a 4 to 3 decision held that a guardian could consent to the removal of one of the ward’s kidneys for transplant to the ward’s brother in order to save the brother’s life. This case is based on entirely different facts. Here the act sought to be performed under the authority of the substituted judgment rule would result ultimately in the death of the ward. That was not the case in Strunk. I do not believe that the holding in Strunk is sufficient authority to authorize the withdrawal of food and water under the substituted judgment rule in this case. In addition, Strunk has been eroded by the enactment of K.R.S. 387.660(3).
Regardless of how sincere the witnesses and family are, or how much we can sympathize with them, I do not believe Strunk should be extended so as to permit death because another person or court believes that it is in her best interest. See Justice Steinfeld’s dissent in Strunk.
In reviewing this type of case, there must be precise attention to the specific subject matter presented. The broad substantive issues connected with mercy killing or euthanasia, assisted suicide, or life-sustaining medical treatment, must be distinguished from the removal of essential food and water to the patient. If as a result of this decision Sue DeGrella’s death ultimately follows, it will not be from being in a persistent vegetative state, nor from the effects of the vicious beating. She will die or be killed, as you prefer, by the inherently lethal action of withholding food and water. Probably that can be accomplished either by the surgical removal of the feeding tube, or by the withholding of food and water. The result is the same: death from starvation.
It could be argued that the long-term use of a feeding tube is an artificial intrusion, but the supply of food and water to one who is unable to supply themselves is certainly not artificial. Can a valid distinction be drawn between the feeding of a patient and the force feeding of an infant by a parent? This case is about an incompetent adult who cannot express her wish as to life or death and who did not so express a wish prior to her injuries.
This matter cannot be fully considered without reference to constitutional questions particularly in view of the recent decision in Doe v. Cowherd, 965 F.2d 109 (6th Cir.1992). In a case involving an incompetent, matters relating to the so-called *715“right to die” also involve questions relating to the constitutionally protected right to live and to accept treatment.
As a ward of the State, Sue DeGrella enjoys the constitutionally protected right to live and to accept life-sustaining treatment that should not be deprived of her by anyone without due process of law or equal protection considerations.
In this case, the patient is an adult ward of Kentucky and because of her disabilities, receives state and federal payments for her care and treatment. Any decision to permit the discontinuance of nutrition or a delegation of that authority would be state action subject to constitutional restraint and review. Cf. In re Longeway, 133 Ill.2d 33, 139 Ill.Dec. 780, 549 N.E.2d 292 (1989); In re Lawrance, 579 N.E.2d 32 (Ind.1991); In re Colyer, 99 Wash.2d 114, 660 P.2d 738 (1983).
Cruzan v. Director, Missouri Dept, of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), characterized the decision by a guardian to withdraw a feeding tube as a decision to terminate a person’s life. There would be an obvious contradiction if Kentucky would attempt to avoid its statutory system to assist persons with disabilities as provided in 92 KAR 20:026 § 3(5)(a) and 907 KAR 1:022 § 3(2)(b) (1992). There is a very fine line in allowing death because of natural circumstances when assistance is abandoned and actively participating in the onset of death by withdrawal of support. Constitutional values relating to the patient’s interest in life must be part of the decision-making process. See The Due Process Right to Life in Cruzan and its Impact on Right to Die Laws, 53 University of Pittsburgh Law Review 193, 208 through 212 (1992).
There is no doubt that the patient would have a right to refuse treatment and as such a voluntary refusal would be a waiver of her right to live in a legal sense. The law requires waivers of constitutional interests and other important rights be subject to very careful review. Cf. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Even though the right to live may not be absolute, it precedes the right to choose because the right to live is the ultimate right or the right to have rights. Cf Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J. Concurring Opinion).
It is asserted by one of the Amicus that approximately 900 medicaid residents of long-term care facilities in Kentucky receive nourishment and fluids through a feeding tube. Healthcare Financing Administration, U.S. Department of Health & Human Services, User defined Summary Report for User Selected Criteria: Total Number of Facilities and Residents with Assistance in Feeding, June 27, 1991. The treatment provided in this case may be considered on the same level with the treatment received by many other similarly situated people in this State.
The real problem with the analysis presented by the majority opinion lies in its potential application to future persons in a similar situation. The majority opinion apparently adopts the view that there are no significant distinctions between terminating food and water and withholding or withdrawing life-sustaining medical treatment. It is troubling that support for such an opinion is found only in a footnote that deals with medical treatment. I am not sure if this statement is to be considered as holding in this case or whether it is applicable to future similar situations.
Certainly there is room for consideration of the principle of double effect. Philosophically you may foresee the result but not intend it. The hard questions are those that require a choice between what is extraordinary means and what is ordinary means. Without question, it generally depends on the circumstances of each case. A competent adult could always refuse to accept medical treatment, but whether nourishment or food and water received through a tube may be placed in the same category as treatment is a significantly different question.
The Federal and State Constitutions provide limits on the decision by a guardian to change the current level of treatment for this patient to the degree which would result in her death. There should be a pre*716sumption that her present treatment served the patient’s best interests in living because it sustained her life in a nonbur-densome manner. Such a presumption should stand unless there is some compelling reason to override it. There should not be an arbitrary presumption that the patient would waive her right to live by rejecting her present treatment without producing sufficiently clear evidence of her prior refusal. There should not be any reduction in her interest in living based only on an assessment of her quality of life, but rather it should be evaluated on the benefits her treatment provides. How these considerations apply depend on various factors as raised in Doe v. Cowherd, supra.
In Cowherd, the U.S. Sixth Circuit determined that Kentucky law requires that the same level of due process given to defendants in criminal proceedings must be given in any other state proceeding involving the intentional deprivation of an individual’s constitutionally protected interests. See Denton v. Commonwealth, Ky., 383 S.W.2d 681 (1964).
Cowherd held that Kentucky violated the constitutional guarantee of equal protection by using different procedural standards for persons with mental illness and those with mental retardation even though both classes were threatened with the same loss of constitutional interests. Kentucky applies the “beyond reasonable doubt” standard in civil proceedings affecting mental illness and it must apply the same criteria to mental retardation cases. Such a constitutional analysis applies in this case and in cases which may follow it.
The “beyond reasonable doubt” standard was used by the California Supreme Court in a commitment proceeding in which that court said the liberty against confinement is second only to life itself. In re Hop, 29 Cal.3d 82, 171 Cal.Rptr. 721, 623 P.2d 282 (1981). Certainly state actions threatening the life of a person or a ward should be conducted with at least as many protections, if not more, as are provided against state action threatening the liberty of a ward.
In Kentucky, the test whether the deliberations relating to the life or death decisions for this patient are “quasi-criminal” in nature. Denton, supra. Surely this patient and any others should be afforded the same constitutional protection given to an accused in a criminal prosecution. Therefore, the “beyond reasonable doubt” standard of evidence should be applied in this type of ease. See Messer v. Roney, Ky.App., 772 S.W.2d 648 (1989).
In applying Kentucky law, the U.S. Sixth Circuit Court has indicated that the authority of a guardian to vindicate one interest of a patient must be carefully scrutinized if it potentially interferes with another interest of the patient. Cf. Doe by Doe v. Austin, 668 F.Supp. 597 (W.D.Ky.1986).
The legitimate interest of a patient to live did not suddenly disappear when her guardian, relatives, physician or hospital caregiver declared their intent to end treatment allegedly in pursuit of her wishes.
If the evidentiary standard is reasonable doubt for proving prior intent, it would necessarily prevent a surrogate waiver based on substituted judgment. See Cruzan v. Director, 497 U.S. at pp. 284-86, 110 S.Ct. at p. 2855.
In this case, it is troubling to read some of the expert testimony presented at trial. It is disturbing that one physician referred to this patient’s life as “no longer meaningful” and that her continued care would weaken society’s commitment to preserving “meaningful” lives. Other testimony was to the effect that she was “dead” and “no longer a person” because she no longer reflected a divine image; and other testimony that even if she is alive, there is no “medical benefit” to continuing her care. Such sworn statements demonstrate this type of patient’s vulnerability and raise serious concern that a decision not to treat could be based on unconstitutional biases against persons with disabilities.
If a patient is to die from refusal of food or fluids, then this should be an informed choice and not as a result of a decision rendered without appropriate due process and equal protection considerations. There is much that we do not know or understand *717about life in general or life under such distressing circumstances as presented here.
The contemporary media-driven culture refers to this as a “right to die” case. It is an easy phrase and simple to remember but difficult to apply. There is a false premise inherent in it which assumes that human beings have a choice regarding death. As noted by one of the Amicus in this case, the real issue is whether persons may chose between allowing disease to proceed naturally to death or delaying ultimate death by medical intervention.
It is interesting to note that in the Federal Cruzan, supra, case the court found that her statements to others regarding her desire to live or die under certain conditions were unreliable for the purpose of determining her intent and insufficient to support a claim for substituted judgment. In Cruzan, Justice Scalia delivers an excellent concurring opinion specifying the problems associated with this type of decision.
The guidelines suggested by the majority opinion by their very title relate to life-sustaining medical treatment. This is not such a case. It is a case about the withdrawal of a hydration system through which the patient receives nourishment and water. Food and water are basic human needs and the process of feeding is not medical treatment under any circumstances. Cf. Justice Nolan’s dissent in Brophy v. New England Sinai Hospital, 398 Mass. 417, 497 N.E.2d 626 (1986); Bannon, Rx: Death by Dehydration, 12 Human Life Review., 70 No. 3 (1986).
The only state interest present in such a case is its interest in preserving life. There can be no transfer of that goal to a state interest in assuring that the patient’s wishes are accurately determined. Primarily, the decision-making process should remain private and I believe that the judicial system should remain open to hear matters relating to the termination of life-sustaining treatment only when a dispute arises among the appropriate parties.
These cases must be limited to a specific and individual basis. The removal of tube feeding cannot be applied automatically to an entire class of patients such as the permanently unconscious. There are legitimate concerns by everyone in our society about the trend toward euthanasia or mercy killing and assisted suicide. The careful “beyond a reasonable doubt” standard might conceivably serve as a “stopper” on the “slippery slope” toward euthanasia and mercy killing. Our society cannot accept a culture of death, but rather a culture of life.
An extreme illustration of the “slippery slope” problem is presented in Alexander, Medical Science under Dictatorship, The New England Journal of Medicine, Vol. 241, No. 2 at 39 (July 14,1949) and is noted in Footnote 11 in the majority opinion in Mack v. Mack, 329 Md. 188, 618 A.2d 744 (1993).
I believe that any judicial intervention is appropriate only in those individual and specific cases in which the family, the physician and the hospital cannot agree. In this case the trial judge used a “clear and convincing” standard. He should not be faulted for that because this was certainly a matter of first impression. I would not direct a “beyond a reasonable doubt” rule retroactively but only prospectively.
The development of standards in this type of situation is best left to the wisdom of the General Assembly. Reliance on Guidelines for State Court Decision-making in Life Sustaining Medical Treatment requires an expansion on the concept of medical treatment. In a representative democratic society, it is part of the legislative function to decide matters of public policy. Certainly, there could be no greater question of public policy than the matter of life-sustaining treatment or hydration. A variety of medical, ethical and philosophic considerations must be addressed when deciding such serious matters which affect each and every individual. The judicial system is better suited for the application and interpretation of the laws once they are established by a democratically elected legislative body.
Therefore, I must respectfully dissent from the decision enunciated in the majority opinion because I believe that the judi*718cial system lacks the authority to grant the relief requested and that the proper standard of proof should be “beyond a reasonable doubt.”
REYNOLDS, J., joins in this dissent.