¶ 28. (concurring). I join in the mandate. I agree that In the Matter of Guardianship of L.W., 167 Wis. 2d 53, 482 N.W.2d 60 (1992), should not be extended to persons not in a persistent vegetative state.1
¶ 29. I write separately because I believe (1) that the majority opinion's characterization of Ms. F.'s condition is incomplete and (2) that further discussion of the application of L.W. to the present case is needed.
*574I.
¶ 30. I write first to explain my disagreement with the majority opinion's characterization of some parts of the record.
¶ 31. The majority's discussion of Ms. F.'s condition does not do justice to the factual record. The majority describes Ms. F. as bedridden, responsive to stimulation and appearing alert at times. Majority op. at 561-62. While this description is true, it conveys an inaccurate picture of Ms. F.'s medical situation. Ms. F. breathes without assistance but in all other respects is dependent on others for her care and continued existence. Ms. F.'s muscles have deteriorated to the point where her limbs are contracted and immobile. She demonstrates no purposeful response, such as withdrawal, to tactile, aural or visual stimuli; she makes non-specific responses to pinching or tapping of the arm or sternum. There is also some testimony suggesting Ms. F. occasionally may track movements in the room with her eyes.
¶ 32. Two attending physicians testified; only Dr. Erickson, however, was asked to opine on whether Ms. F. was in a persistent vegetative state at the time of his examination of her. Dr. Erickson testified as follows:
The definition [of persistent vegetative state] as described in the journal of neurology in 1989, January, 1989, requires that there be no behavioral response whatsoever over an extended period of time, and that no voluntary action or behavior of any kind is present. As I testified before, Edna, in my opinion, has provided evidence of some minimal response to stimulation from her surrounding, and so in the strict definition, I would have to say that she approximates but does not entirely meet that definition of the persistent vegetative state.
*575R. 19 at 33.
¶ 33. The circuit court made the following finding of fact, in accord with the guardian's position and the evidence presented: "Edna M.F. is a 71 year old woman whose mental condition approximates but does not meet the clinical definition of persistent vegetative state." Given the record in this case the circuit court's finding that Ms. F. is not in a persistent vegetative state is not clearly erroneous.2
¶ 34. The other important factual question is whether Ms. F. made a clear expression of her wishes regarding life-sustaining medical treatment. I agree with the majority opinion that the record supports the finding that she did not and the circuit court's memorandum decision implies such a finding. That finding is not clearly erroneous.
hH l-H
¶ 35. I have some concern about the majority opinion's characterization of several aspects of the L.W. decision.
¶ 36. L.W. largely controls our decision in the present case. L.W. held that a guardian may consent to *576the withholding or withdrawal of life-sustaining medical treatment on behalf of one who was never competent, or a once competent person whose conduct was never of a kind from which one could draw a reasonable inference upon which to make a substituted judgment,3 when: (1) the attending physician and independent 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; and (2) the guardian determined in good faith that the withholding or withdrawal of treatment is in the ward's best interests. L.W., 167 Wis. 2d at 84-85.
¶ 37. I feel it necessary to state what I believe L.W. does and does not stand for and to offer further discussion of the application of L.W. to the facts of this case.
¶ 38. First, L.W. held that a person's right to refuse life-sustaining medical treatment includes the right to refuse the provision of nutrition and hydration. L.W., 167 Wis. 2d at 70-73.4 It is therefore of ho *577moment that the United States Supreme Court "merely assumed" this fact in Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990), as the majority opinion states. Majority op. at 564 n.4. There is no longer any doubt that the provisions of nutrition and hydration by artificial means are forms of medical treatment in Wisconsin.
¶ 39. Second, L.W. held that a surrogate decision maker must apply a best interests test to determine the propriety of withholding life-sustaining medical treatment to a person who was never competent or a person whose conduct while competent was never of a kind from which one could draw a reasonable inference upon which to make a substituted judgment. L.W. 167 Wis. 2d at 75-76. L.W. did not establish whether a substituted judgment test or other test is appropriate to determine the propriety of withholding life-sustaining medical treatment from a person who gave indication while competent of his or her wishes regarding such treatment. Nor did L.W. address the proper test to be used when the incompetent person is not in a persistent vegetative state. L.W. was concerned with a person in a persistent vegetative state who by all indications had never been competent. There was, therefore, no basis on which a guardian or a court could make a substituted judgment and only under such circumstances did the court rule out a substituted judgment test. L.W. 167 Wis. 2d at 78-79 and n.11. It would be inaccurate to conclude that the substituted *578judgment test has been rejected in other circumstances.
¶ 40. I take the majority opinion to imply that L.W. rejected the substituted judgment test for all persons in a persistent vegetative state:
Noting that this court has rejected the substituted judgment standard in the past [citing In re Guardianship of Pescinski, 67 Wis. 2d 4, 7-8, 226 N.W.2d 180 (1975) and In re Guardianship of Eberhardy, 102 Wis. 2d 539, 566-67, 307 N.W.2d 881 (1981)] and that the clear and convincing evidence standard would be too strict, this court [in L.W.] concluded that an objective "best interests" standard was the appropriate standard to apply when deciding whether to withdraw life-sustaining medical treatment from an incompetent ward in a persistent vegetative state. [L.W., 167 Wis. 2d] at 76, 78, 81. The only thing that matters in the decision-making process is what would be in the ward's best interests.
Majority op. at 566. But the court in L.W., having considered the two cases cited by the majority opinion in the present case, Pescinski and Eberhardy, stated explicitly that substituted judgment may be the appropriate test in some circumstances:
[N] either of these cases should be construed to mean that a surrogate decision maker could not make a substituted judgment or decision that was designed to carry out the wishes of the incompetent if the incompetent's wishes were knowable. . . .To hold that all substituted judgments are ipso facto rejected would probably constitute an unconstitutional holding for it would deprive an incompetent of the constitutional right of choice — a right that is *579universally recognized when the choice is ascertainable.
L.W., 167 Wis. 2d at 79 n.11. The court has no reason to address the appropriate test in the present case because according to the record Ms. F. was not in a persistent vegetative state and her wishes were not knowable. The majority opinion therefore should not be read to change or add to L.W.'s limited statement regarding the appropriate test for a court or guardian to apply in determining the propriety of withholding life-sustaining medical treatment.5
¶ 41. Third, pursuant to L.W., the court's ruling today is limited to Ms. F.'s condition in the spring of 1995. The decision whether to seek additional diagnoses when this case is completed properly belongs to the guardian and not to the court. It is a fundamental premise of L.W. that ordinarily decisions to withhold or withdraw life-sustaining medical treatment of a ward are to be made by a guardian in conjunction with doc*580tors and the family, not by the courts. As L.W. stated, courts are poorly equipped to handle these matters. L.W., 167 Wis. 2d at 92.
¶ 42. If the guardian chooses to seek further diagnoses and if the doctors, applying current medical knowledge, determine that Ms. F. is at the time of examination in a persistent vegetative state, the guardian may consent to withdrawal of nutrition or the guardian may decide not to withdraw nutrition. In either event, no further circuit court proceeding is available or required unless an interested person objects to the withdrawal of nutrition.
¶ 43. The diagnosis of a persistent vegetative state or its absence is made by qualified physicians using scientifically current information and standards. Guardians and doctors must be allowed to adopt the medical community's most advanced thinking on the subject.6 It is similarly important that physicians who are called upon to make the apparently difficult diagnosis of a persistent vegetative state be expert in this area of medicine. Court review of the guardian's determination is necessary only if a party in interest objects. L.W., 167 Wis. 2d at 92-93 and n.20.
¶ 44. Fourth, the holding in L.W. should be understood to state the principle that the fact that the ward is in a persistent vegetative state is a significant legal threshold.
¶ 45. Under L.W. the opinion of an attending physician is essential for the withdrawal of nutrition. *581Dr. Erickson, one of the attending physicians, was an internist, had extensive experience with older persons including treating Alzheimer's patients, and held a certificate of added qualifications in geriatrics. While the guardian and guardian ad litem believe that withdrawal of life-sustaining treatment for Ms. F. is appropriate, they relied on the diagnosis of Ms. F.'s attending physicians, as they were required to do under L.W.
¶ 46. When the attending physician did not diagnose Ms. F. as in a persistent vegetative state, there was no point in consulting independent physicians. The issue of who should be the independent physicians to diagnose Ms. F.'s condition is thus not raised in this case and has not been briefed by the parties. Furthermore, L.W. does not address the difficult question of what procedure should be followed when there is disagreement among the consulted physicians whether the patient is in a persistent vegetative state. Again, this question is not raised or briefed in this case.
¶ 47. To the extent it may be necessary or appropriate for the court to change, add to, or expand upon the standards set forth in L.W., the court should do so only with the benefit of full adversarial briefing in a case presenting a real controversy framed by adversarial parties. See, e.g., State v. Garfoot, 207 Wis. 2d 215, 239, 558 N.W.2d 626 (1997) (Bablitch, J., concurring).
¶ 48. I view L.W. as the first step in addressing withdrawal of life-sustaining medical treatment from persons in a persistent vegetative state who have not clearly expressed their wishes. As is evident in this case, L.W. has not answered all the questions that will be raised in this complex and troubling area. I have tried to take care, however, not to use the present case *582as the vehicle to offer answers to unresolved complex questions that have been neither raised nor briefed. I am concerned that I not engage in appellate decision making of the sort Attorney Bernard Witkin has characterized as "Have Opinion, Need Case." B.E. Witkin, Manual on Appellate Court Opinions § 86 at 155 (1977).
¶ 49. Fifth, L.W. commented favorably on the role of the health care provider's ethics committee.7 Hospital or nursing home ethics committees provide an important forum for careful deliberation about the decision to withhold life-sustaining medical treatment. Based on the limited record before us, it appears that the committee reviewing the request by Ms. F.'s guardian did not function effectively. Had Ms. F. been in a persistent vegetative state and had an interested person objected to the withdrawal of nutrition, the circuit court stated that it would have been unable to give weight to the committee's purported determination that withholding of nutrition was the ethically proper course. The circuit court noted that no formal minutes or report of the meeting was produced at the hearing and that the committee members apparently functioned without either a shared body of rules or training in ethics. In fairness to the committee members in this case, it must be noted that the committee had only recently been formed and had deliberated in perhaps only one other case.
¶ 50. The circuit court also seemed troubled, as am I, with the apparent focus of the ethics committee's investigation. The committee seemed to understand *583that its function was to reach a determination that would insulate the facility from legal liability rather than the determination that best comported with medical ethics.8 The focus of all participants in this fateful and difficult process should be on the propriety of taking action which will lead to a person's death. The health care facility's liability concerns must not be allowed to interfere with the guardian's efforts to assure the exercise of the ward's right to be free of unwanted life-sustaining medical treatment when the guardian has determined, in consultation with the physicians, that the ward is in a persistent vegetative state and it is in the ward's best interests to withhold such treatment.
¶ 51. For the foregoing, reasons I write separately.
The guardian, the guardian ad litem, the two amici, and counsel appointed by this court to support the order of the circuit court agree that at the time of the hearing Ms. F. was not in a persistent vegetative state. The guardian and guardian ad litem would have preferred that the attending doctor opine that Ms. F. was in a persistent vegetative state because the guardian could then have directed the withdrawal of nutrition without authorization from the court if two independent physicians concurred in the diagnosis. Yet the guardian accepted the diagnosis of Ms. F.'s attending doctors at that time.
Because of the attending doctor's diagnosis, the guardian, the guardian ad litem and the amici came to court to urge the court to authorize circuit courts to confirm a guardian's decision to direct withdrawal of nutrition from a person not in a persistent vegetative state. Thus counsel urge us to extend In the Matter of Guardianship of L.W., 167 Wis. 2d 53, 482 N.W.2d 60 (1992). Court-appointed counsel urges us to adhere to L.W.
The amici curiae are the Elder Law Center of the Coalition of Wisconsin Aging Groups and the Board on Aging and Long Term Care of the State of Wisconsin. Each filed a brief.
The majority opinion embellishes the record when it concludes that Ms. F. could "likely feel the pain and discomfort of starving to death." Majority op. at 569. Dr. Erickson testified that in his opinion Ms. F. was not experiencing any pain. R. 19 at 34, 51-52. Dr. Przybylinski testified that he thought Ms. F. could experience pain but that a physician could not determine this fact. R. 19 at 63, 68-69. The circuit court made no finding, express or implied, regarding whether Ms. F. retains sufficient cortical function to feel pain. Retention of the feeding tube would enable the clinic staff to continue to provide Ms. F. with fluids and, if deemed necessary, with pain medication, while nutrition was withheld.
I agree with the majority opinion that the ward in the present case had not made a clear expression, when competent, of her wishes with regard to life-sustaining medical treatment.
Despite the objection raised in the dissenting opinion in L.W., 167 Wis. 2d at 99 (Steinmetz, J., dissenting), the court concluded its thorough consideration of the issue as follows: " 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." L.W., 167 Wis. 2d at 73. In response to the dissenting opinion the L.W. majority stated:
The dissent asserts that this conclusion is 'unwarranted and misconceived' because Cruzan did not decide the issue. ... It is clear *577that we base our conclusion that artificial nutrition and hydration is medical treatment which may be refused primarily on the fact that it is indistinguishable from other forms of treatment and not on the ambivalence of the Cruzan majority.
Id. at 73 n.7.
For discussions of the substituted judgment and best interests tests see John A. Robertson, Cruzan and the Constitutional Status of Nontreatment Decisions for Incompetent Patients, 25 Ga. L. Rev. 1139 (1991); Yale Kamisar, When is there a Constitutional"Right to Die"? When is there no Constitutional "Right to Live"?, 25 Ga. L. Rev. 1203 (1991); John A. Robertson, Assessing Quality of Life: A Response to Professor Kamisar, 25 Ga. L. Rev. 1243 (1991); Stewart G. Pollock, Life and Death Decisions: Who Makes Them and By What Standards?, 41 Rutgers L. Rev. 505 (1989); Nancy K. Rhoden, Litigating Life and Death, 102 Harv. L. Rev. 375, 380-419 (1988); Joanna K. Weinberg, Whose Right Is It Anyway? Individualism, Community, and the Right to Die: A Commentary on the New Jersey Experience, 40 Hastings L.J. 119 (1988); Rebecca Morgan, Florida Law and Feeding Tubes — The Right of Removal, 17 Stetson L. Rev. 109 (1987).
Unlike the other concurring opinion I do not believe this court should determine the differences, if any, between the 1994 and earlier medical standards about persistent vegetative state and the appropriate medical diagnosis of persistent vegetative state without the assistance of experts' testimony and without briefing by the parties.
L.W., 167 Wis. 2d at 89. For a discussion of the role of ethics committees see Gregory A. Jaffe, Institutional Ethics Committees: Legitimate and Impartial Review of Ethical Health Care Decisions, 10 J. Legal Medicine 393 (1989).
The ethics committee apparently agreed with the decision to withhold nutrition from Ms. F. but would not agree to carry out this decision without written consent from all family members. It appears that all family members except for one niece of Ms. F. consented in writing. The niece was reported to have said that she did not object to withholding nutrition but that her religious views precluded her from consenting in writing.
The circuit judge concluded his own lengthy questioning of one member of the ethics committee with the following: "[T]he way I understand it, what you really have is a liability problem, and that's why you want everybody to consent, is that correct?" Dr. Erickson answered: "That is correct." R. 19 at 47.