dissenting:
I respectfully dissent.
In In re Estate of Longeway (1989), 133 Ill. 2d 33, this court announced narrow guidelines and procedures under which life-sustaining medical treatment, including artificially supplied nutrition and hydration, may be withdrawn from an incompetent patient. I dissented and continue to believe that the court was wrong when it held that third persons, under the fiction of substituted judgment, may withhold food and water from an incompetent patient who can neither reject nor accept the decision that his or her life will intentionally be taken. In my opinion, Longeway ignores the simple but surpassingly important distinction between the right to choose the surrender of one’s own life and the right to direct the death of another. Longeway is, or should be, controlling precedent and I dissent here only from those parts of the majority opinion which, I consider, depart from the guidelines adopted in Longeway.
The Longeway opinion held that a guardian may refuse artificially supplied nutrition and hydration on behalf of an incompetent ward only if: (1) the incompetent patient is terminally ill as defined in the Living Will Act; (2) the incompetent has been diagnosed as irreversibly comatose or in a persistently vegetative state; (3) the incompetent’s attending physician and at least two other consulting physicians concur in the diagnosis; (4) the incompetent’s right to refuse treatment outweighs the State’s countervailing interests; (5) there is clear and convincing evidence that the incompetent patient, if competent, would approve the withdrawal in the circumstances; and (6) a court determines that the above requirements are satisfied and authorizes the surrogate to refuse treatment on behalf of the incompetent patient. Longeway, 133 Ill. 2d at 47-53.
The majority opinion does not follow this standard in several significant respects. First, and of crucial importance, the majority effectively eliminates the requirement that the incompetent patient must be terminally ill within the meaning of the Living Will Act (Ill. Rev. Stat. 1987, ch. 110½, par. 702(h)) before nutrition and hydration can be withdrawn. A terminal condition referred to in Longeway is defined in section 2(h) of the Living Will Act as:
“an incurable and irreversible condition which is such that death is imminent and the application of death delaying procedures serves only to prolong the dying process.” (Ill. Rev. Stat. 1987, ch. 110½, par. 702(h).)
The majority acknowledges that the evidence at the hearing in the circuit court established that Mr. Greenspan’s death will not be imminent unless the feeding tubes are removed. To overcome these evidentiary deficiencies, the majority states that imminence must be judged as if the life-sustaining procedures were not in place. It then states that the testimony that Mr. Greenspan’s death would occur within a week after withdrawal of the feeding tube is sufficient to satisfy the requirement of imminence of death. One submits that death for almost anyone would result or would be imminent if nourishment were withdrawn for a week.
In so holding, the majority does not conform to the definition of a terminal condition stated in the Living Will Act, and instead adopts the somewhat extraordinary testimony of Dr. Burke that “Mr. Greenspan is terminally ill in the sense that his illness would have been terminal if current means of keeping him alive were unavailable.” (See 137 Ill. 2d at 6.) This view of what is a terminal illness is obviously unacceptable. Many illnesses would be terminal were it not for the resources of modern medicine. If Dr. Burke’s purported definition of terminal illness were to be followed, many patients with treatable illnesses might be regarded as facing imminent death and being terminally ill (e.g., pneumonia patients might face imminent death without antibiotics; those with many other illnesses would progress to a state of imminent death without modern treatment).
The definition of “terminal condition” stated in the Living Will Act requires that the patient’s death be imminent as a result of the incurable and irreversible condition whether or not death-delaying procedures are applied. Life-sustaining measures, such as the provision of food and water, may be withdrawn only if the patient will die regardless of whether or not the measures are administered. The Living Will Act’s carefully narrow definition of “terminal condition” permits the withdrawal of life-sustaining measures, such as food and water, only when those measures would be futile. Mr. Greenspan is not terminally ill within the meaning of the Living Will Act because he is not suffering from an incurable and irreversible condition “which is such that death is imminent.” Ill. Rev. Stat. 1987, ch. 110½, par. 702(h).
As I noted in my dissenting opinion in Longeway, it is said that 19.4% of patients in intermediate care nursing facilities and 33.8% of patients in this State’s skilled nursing homes receive tube-feeding or need assistance to obtain sustenance. (Longeway, 133 Ill. 2d at 56.) It would appear that under the majority’s seeming standard, patients dependent upon artificial nutrition and hydration would qualify as “terminally ill” within the meaning of the Living Will Act if they have an incurable and irreversible condition. Those patients qualify as “terminally ill” even if their conditions are not life-threatening. There are conditions which are incurable and irreversible, but do not necessarily produce a condition of imminent death. Exemplary of this are cerebral palsy, many forms of cancer, emphysema, diabetes, cystic fibrosis and multiple sclerosis. Many forms of mental illness likewise are incurable and irreversible.
Even if the majority did not hold that Mr. Greenspan is “terminally ill” within the meaning of the Living Will Act, it errs in holding that his death will be caused by his underlying terminal condition, rather than from the withdrawal of artificial nutrition and hydration. (137 Ill. 2d at 17.) The majority states, “[W]hen, as the result of incurable illness, a patient cannot chew or swallow and a death-delaying feeding tube is withdrawn in scrupulous accordance with law, the ultimate agent of death is the illness and not the withdrawal.” 137 Ill. 2d at 15-16, citing Longeway, 133 Ill. 2d at 42.
The assumption of the majority that Mr. Greenspan is unable to swallow as a result of his condition is gratuitous. The record shows that, although Mr. Greenspan suffered a stroke in November 1984, the nasogastric feeding tube was not inserted until the spring of 1985. Mr. Greenspan’s daughter testified that Mr. Greenspan ate pureed food for several months after he was admitted to the nursing home. Too, Dr. Burke testified that patients, like Mr. Greenspan, who are in a chronic vegetative state retain brain-stem reflexes, including the ability to swallow. The record suggests that Mr. Greenspan retains his ability to swallow food, and that the nasogastric tube was inserted only to make feeding him more convenient and to eliminate any risks associated with feeding him pureed food.
In view of the evidence that Mr. Greenspan retains the ability to swallow, the majority’s conclusion that he will die as a result of his supposed “inability to swallow” or “terminal illness” cannot stand. Mr. Greenspan will not die of senile dementia or the stroke. If the nasogastric tube is removed and he is not otherwise supplied with nutrition and hydration, Mr. Greenspan vfill die of starvation and dehydration as a direct result of the decision not to feed him.
The majority does remand the cause because, inter alia, “clear and convincing evidence is required in order to establish Mr. Greenspan’s intent regarding withdrawal of the feeding tube.” (137 Ill. 2d at 24.) This is important because the record shows that the evidentiary hearing which was held was not adversarial in nature. The guardian ad litem who was appointed to represent Mr. Greenspan’s interests did not present any witnesses at the hearing and even recommended that the court grant the public guardian’s petition to remove Mr. Greenspan’s nutrition and hydration.
In Longeway, this court held that the evidence must clearly and convincingly demonstrate that an incompetent patient, if competent, would refuse nutrition and hydration under the circumstances. (Longeway, 133 Ill. 2d at 47-51; see also Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408, aff'd (1990), 497 U.S. ___, 111 L. Ed. 2d 224, 110 S. Ct. 2841.) This standard is necessarily subjective. The question is not what the guardian would choose, or what a reasonable or average person would choose to do under the circumstances. Rather, the issue is whether the particular patient, if competent, would choose to terminate the treatment sustaining his life under the circumstances. (In re Conroy (1985), 98 N.J. 321, 360, 486 A.2d 1209, 1229.) Evidence tending to establish the patient’s intent is to be considered by both the surrogate decision-maker and the court responsible for overseeing the surrogate’s decision.
The surrogate decisionmaker may not presume that general statements, such as an expression by the patient that he would not want to be “artificially sustained” by “heroic measures” in a “hopeless” condition, indicate that the patient would choose to forgo all life-sustaining treatment if physically incapacitated in any manner. (In re Conroy (1985), 98 N.J. 321, 364 n.7, 486 A.2d 1209, 1231 n.7.) As the New York Court of Appeals recognized in In re O’Connor (1988), 72 N.Y.2d 517, 532, 531 N.E.2d 607, 614:
“If such statements were routinely held to be clear and convincing proof of a general intent to decline all medical treatment once incompetency sets in, few nursing home patients would ever receive life-sustaining medical treatment in the future. The aged and infirm would be placed at grave risk if the law uniformly but unrealistically treated the expression of such sentiments as a calm and deliberate resolve to decline all life-sustaining medical assistance once the speaker is silenced by mental disability.”
The American Medical Association’s amicus curiae brief simply argues that providing Mr. Greenspan with nutrition and hydration is not beneficial because it does not advance his interest in recovery. But of course, food and water are not consumed to treat or cure disease. Instead, they provide ordinary sustenance and comfort. It appears to be the argument of the amicus that patients, like Sidney Greenspan, who are in a persistent vegetative state must be able to derive greater benefit from food and water — such as assistance in recovering from the underlying disability — than those who are not in that condition. I do not believe that the nourishing of Mr. Greenspan should be discontinued because he is impaired and cannot recover. To do that would mean that his life in its present form is not worth living. (Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408.) A diminished quality of life will not support an unconditional decision to terminate life-sustaining procedures. This court has rejected the proposition that life itself can be useless or an excessive burden. Siemieniec v. Lutheran General Hospital (1987), 117 Ill. 2d 230.
JUSTICE CALVO joins in this dissent.