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As medical science and technology progress, the distinction between traditional notions of life and death becomes increasingly blurred. Persons in dire medical conditions, lacking all cognitive and sensory abilities, may now be kept  alive  for indefinite periods of time. In the seminal case of In re Quinlan, a court was first asked whether it was ever legally permissible to withhold or withdraw life-preserving care from a persistently vegetative person. Since In re Quinlan, the courts of many states, including Maine, have confronted this issue.  In In re Gardner, the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a superior court judgment authorizing the withdrawal of life-preserving care from an incompetent hospital patient in a  persistent vegetative state  (PVS). In affirming the judgment, the Law Court held that the incompetent patient had made a prior decision not to be maintained in such a medical condition and that the patient had a legal right to have his decision enforced. Three members of the Law Court dissented, arguing that the evidence was insufficient to support a finding that the patient would want treatment discontinued. Moreover, the dissent argued that the state's interests in preserving life and in preventing suicide outweighed any interests of the patient in having treatment discontinued. The dissent also maintained that life-sustaining care in the form of nutrition and hydration should not be withdrawable in this case.  This Note examines the Law Court's analysis in In re Gardner and the standard that it announced in deciding whether to allow the withdrawal of life-sustaining care from a PVS patient. This Note maintains that the Law Court erred in finding that the patient had made an actual prior decision to refuse medical care. The Note also argues that the Law Court's adoption of a personal rights-based analysis was inappropriate. Finally, this Note criticizes the Law Court for its failure to articulate clearly a legal procedure to guide future guardians who seek to withdraw an incompetent's life-preserving care

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Maine Law Review Volume 41 Number 2 Article 9 June 1989 In re Gardner: Withdrawing Medical Care From Persistently Vegetative Patients John K. Veroneau University of Maine School of Law Follow this and additional works at: https://digitalcommons.mainelaw.maine.edu/mlr  Part of the Constitutional Law Commons, and the Medical Jurisprudence Commons Recommended Citation John K. Veroneau, In re Gardner: Withdrawing Medical Care From Persistently Vegetative Patients, 41 Me. L. Rev. 447 (1989). Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol41/iss2/9 This Case Note is brought to you for free and open access by the Journals at University of Maine School of Law Digital Commons. It has been accepted for inclusion in Maine Law Review by an authorized editor of University of Maine School of Law Digital Commons. For more information, please contact mdecrow@maine.edu. IN RE GARDNER: WITHDRAWINGMEDICAL CARE FROM PERSISTENTLYVEGETATIVE PATIENTSI INTRODUCTIONAs medical science and technology progress, the distinction be-tween traditional notions of life and death becomes increasinglyblurred.1 Persons in dire medical conditions, lacking all cognitiveand sensory abilities, may now be kept "alive" for indefinite periodsof time.2 In the seminal case of In re Quinlan, a court was firstasked whether it was ever legally permissible to withhold or with-draw life-preserving care from a persistently vegetative person 4Since In re Quinlan, the courts of many states, including Maine,have confronted this issue.51. In Severns v. Wilmington Medical Center, Inc., 421 A.2d 1334 (Del. 1980), thecourt explained:[W]e are on the threshold of new terrain-the penumbra where death be-gins but life, in some form, continues. We have been led to it by the medi-cal miracles which now compel us to distinguish between "death," as wehave known it, and death in which the body lives in some fashion but thebrain (or a significant part of it) does not.Id. at 1344. See also In re Quinlan, 70 N.J. 10, 27, 355 A.2d 647, 656 (1976) ("Devel-opments in medical technology have obfuscated the use of the traditional definitionof death.").2. Leach v. Akron Gen. Medical Center, 68 Ohio Misc. 1, 6, 426 N.E.2d 809, 812(1980) ("Since man, through his ingenuity has created a new state of human exis-tence-minimal human life sustained by life supports-it must now devise and fash-ion rules and procedures for that existence.").3. In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), cert. denied, 429 U.S. 922(1976).4. Id. at 20-21, 70 A.2d at 652. Of course, decisions to discontinue life supportsystems had been made prior to In re Quinlan without judicial involvement. See Inre Storar, 52 N.Y.2d 363, 385 420 N.E.2d 64, 75, 438 N.Y.S.2d 266, 277 (1981) (Jones,J., dissenting) ("There is reliable information that for many years physicians andmembers of patients' families, often in consultation with religious counselors, have inactuality been making decisions to withhold or to withdraw life support proceduresfrom incurably ill patients incapable of making the critical decisions for them-selves."), cert. denied, 454 U.S. 858 (1981).5. For a survey of state court decisions, see Annotation, Judicial Power to OrderDiscontinuance of Life-Sustaining Treatment, 48 A.L.R. 4th 67 (1986). For a varietyof scholarly commentary on the termination-of-treatment issue, see N. CANTOR. LEGALFRONTIERS OF DEATH AND DYING (1987); Buchanan, The Limits of Proxy Decision-making for Incompetents, 29 UCLA L. Rxv. 386 (1981); Dresser, Life, Death, andIncompetent Patients: Conceptual Infirmities and Hidden Values in the Law, 28AR L. REv. 373 (1986); Quinn, The Best Interests of Incompetent Patients: TheCapacity for Interpersonal Relationships as a Standard for Decisionmaking, 76 CA-LIF. L. REv. 897 (1988); Rhoden, Litigating Life and Death, 102 HARv. L. Rv. 375(1988); Comment, The Role of the Family in Medical Decisionmaking for Incompe-tent Adult Patients: A Historical Perspective and Case Analysis, 48 U. Prrr. L. Rv.539 (1987); Note, In re Jobes: Right to Die-Vegetative Patients' Right to Self-De-MAINE LAW REVIEWIn In re Gardner,6 the Maine Supreme Judicial Court, sitting asthe Law Court, affirmed a superior court judgment authorizing thewithdrawal of life-preserving care7 from an incompetent hospital pa-tient in a "persistent vegetative state" (PVS).5 In affirming the judg-ment, the Law Court held that the incompetent patient had made aprior decision not to be maintained in such a medical condition andthat the patient had a legal right to have his decision enforced. 10Three members of the Law Court dissented, arguing that the evi-dence was insufficient to support a finding that the patient wouldwant treatment discontinued." Moreover, the dissent argued thatthe state's interests in preserving life and in preventing suicide out-weighed any interests of the patient in having treatment discontin-termination Permits Surrogate to Terminate Artificial Feeding, 18 SE'oN HALL 458(1988).6. In re Gardner, 534 A.2d 947 (Me. 1987).7. Life-preserving care consisted of providing food and water via a nasogastric(NG) tube inserted through Gardner's nose and esophagus into his stomach. There isdebate whether providing food and water should be characterized as life-sustaining"medical" care. Some commentators have argued that food and water should beoutside the scope of withdrawable medical care. See, e.g., Callahan, On Feeding theDying, 13 HASTINGS CENTER REP. 22 (Oct. 1983) (arguing that the cause of death be-comes dehydration and starvation rather than the underlying disease). But see N.CANTOR, LEGAL FRONTIERS OF DEATH AND DYING 40 (1983) (discounting the causationargument and pointing out that "no one argues that a patient is improperly being'choked' to death if a respirator is removed ....").8. In re Gardner, 534 A.2d at 948-49. A persistent vegetative state has been de-fined by one court as a condition in which the patient:"(a) shows no evidence of verbal or non-verbal communication;"(b) demonstrates no purposeful movement or motor ability;"(c) is unable to interact purposely with stimulation provided by hisenvironment;"(d) is unable to provide for his own basic needs;"(e) demonstrates all of the above for longer than three months."Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 421, 497 N.E.2d 626, 628(1986). See also In re Quinlan, 70 N.J. 10, 23-24, 355 A.2d 647, 654-55 (1976) (notingthe patient in a persistent vegetative state maintains neurological functions but nolonger has cognitive functions), cert. denied, 429 U.S. 922 (1976).The persistent vegetative state (PVS) is a neurological syndrome distinct fromwhole brain death or coma. Whole brain death is the cessation of both higher cerebralfunctions (consciousness and the control of movement) and all brain stem functions(vegetative functions such as eye movements, spontaneous respiration, coughing andswallowing). A coma, however, is a sleep-like state of unarousability caused by exten-sive damage to the reticular activating system of the brain stem. By contrast, a PVSpatient has a relatively intact brain stem and can manifest a variety of normal brainstem functions such as spontaneous respiration and response to light. A PVS patientis unconscious (lacks higher cerebral functions) but is not comatose. See Cranford,The Persistent Vegetative State: The Medical Reality (Getting the Facts Straight),18 HASTINGS CENTER REP. 27, 27-28 (Feb.-Mar. 1988).9. In re Gardner, 534 A.2d at 950.10. Id. at 953.11. Id. at 956 (Clifford, J., dissenting).[Vol. 41:447WITHDRAWING MEDICAL CAREued.12 The dissent also maintained that life-sustaining care in theform of nutrition and hydration should not be withdrawable in thiscase.13This Note examines the Law Court's analysis in In re Gardnerand the standard that it announced in deciding whether to allow thewithdrawal of life-sustaining care from a PVS patient. This Notemaintains that the Law Court erred in finding that the patient hadmade an actual prior decision to refuse medical care. The Note alsoargues that the Law Court's adoption of a personal rights-basedanalysis was inappropriate. Finally, this Note criticizes the LawCourt for its failure to articulate clearly a legal procedure to guidefuture guardians who seek to withdraw an incompetent's life-pre-serving care.IL BACKGROUNDA patient's right to refuse medical treatment, even life-sustainingmedical care, is supported by both the common law right to freedomfrom nonconsensual invasions of bodily integrity and the federalconstitutional right to privacy in making personal decisions affectingone's body. In addition, many states, including the District of Co-lumbia, have enacted "living will" statutes codifying these princi-ples.14 Regardless of its legal underpinning, however, the right to re-12. Id. at 957.13. Id. at 958 (arguing that medical procedures providing food and water havespecial humanitarian and symbolic value that dictate against their removal). The dis-sent points out that the Maine Living Wills Act, Ma. REV. STAT. ANN. tit. 22, §§ 2921-2931 (Supp. 1988-1989), distinguishes nutrition and hydration procedures from othermedical procedures insofar as such procedures cannot be withdrawn under the Actunless they merely prolong the dying process. See ME. REv. STAT. ANN. tit. 22, §2921(4) (Supp. 1988-1989). See generally Comment, Maine's Living Will Act and theTermination of Life-Sustaining Medical Procedures, 39 MiNE L Rsv. 83, 101-104(1987). Although Gardner had executed no living will, the dissent argued that theLaw Court should respect the Legislature's distinction between nutrition and hydra-tion procedures and other medical procedures. In re Gardner, 534 A.2d at 958.14. AL. CODE §§ 22-8A-1 to 22-8A-10 (1987); ALASKA STAT. §§ 18.12.010-18.12.100(1986); Aum REv. STAT. ANN. §§ 36-3201 to 36-3210 (1986); ARf. STAT. ANN. §§ 82-3801 to 82-3804 (Supp. 1985); CAL. HEALTH & SAFETY CODE §§ 7185-7195 (West Supp.1988); COLO. REv. STAT. §§ 15-18-101 to 15-18-113 (1987); CONN. GEN. STAT. ANN. §§19a-570 to 19a-575 (West Supp. 1988); DEL CODE ANN. tit. 16, §§ 2501-2508 (1983);D.C. CODE ANN. §§ 6-2401 to 6-2430 (Supp. 1987); FLA. STAT. ANN. §§ 765.01-765.15(West 1986); GA. CODE ANN. §§ 31-32-1 to 31-32-12 (Supp. 1985); 1986 RAw. SEsS.LAws 718; IDAHO CODE §§ 39-4501 to 39-4508 (1985 & Supp. 1987); ILL. ANN. STAT. ch.110 1/2, para. 701-710 (Smith-Hurd Supp. 1987); IND. CODE ANN. §§ 16-8-11-1 to 16-8-11-22 (West Supp. 1987); IowA ConE ANN. §§ 144A,1-144A.11 (West Supp. 1988);KAN. STAT. ANN. §§ 65-28,101 to 65-28,109 (1985); LA. Rev. STAT. ANN. §§ 40.1299.58.1-40:1299.58.10 (West Supp. 1988); ME. Rev. STAT. ANN. tit. 22, §§ 2921-2931 (Supp.1988-1989); MD. HEALTH-GEN. CODE ANN. §§ 5-601 to 5-614 (Supp. 1987); Mss. ConeANN. §§ 41-41-101 to 41-41-121 (Supp. 1987); Mo. ANN. STAT. §§ 459.010-459.055(Vernon Supp. 1988); MONT. CODE ANN. §§ 50-9-101 to 50-9-111 (1987); Nav. REv.STAT. §§ 449.540-449.690 (1986 & Supp. 1987); NJL Rev. STAT. ANN. §§ 137-H:1 to1989]MAINE LAW REVIEWfuse life-preserving medical care is not absolute.The common law has long recognized an individual's right to free-dom from nonconsensual invasions of bodily integrity.10 The doc-trines of battery and informed consent have become the primary le-gal means of protecting the common law right to bodily integrity inthe medical context."6 Medical care often involves touching, andmay be considered battery if the touching is unconsented. 17 Underbattery analysis, the patient's wishes take priority over even thefully competent recommendation of a doctor, unless an exceptionapplies.18 Under the doctrine of informed consent, no medical proce-dure may be performed without a patient's consent, obtained afterexplanation of the nature of the treatment, substantial risk, and al-ternative therapies.19 Recognizing our legal culture's traditional re-173-H:16 (Supp. 1987); N.M. STAT. ANN. §§ 24-7-1 to 24-7-10 (1986); N.C. GEN. STAT.§§ 90-320 to 90-322 (1985); OKLA. STAT. ANN. tit. 63, §§ 3101-3111 (West Supp. 1988);O. REV. STAT. §§ 97.050-97.090 (1984 & Law Co-op. Supp. 1987); S.C. CODE ANN. §§44-77-10 to 44-77-160 (Supp. 1987); TENN. CODE ANN. §§ 32-11-101 to 32-11-110(Supp. 1987); Thx. REV. Civ. STAT. ANN. art. 4590h (Vernon Supp. 1988); UTAH CODEANN. §§ 75-2-1101 to 75-2-1118 (Supp. 1987); VT. STAT. ANN. tit. 18, §§ 5251-5262(1987); VA. CODE ANN. §§ 54-325.8:1 to 54-325.8:12 (Supp. 1987); WASH. REV. CODEANN. §§ 70.122.010-70.122.905 (Supp. 1988); W. VA. CODE §§ 16-30-1 to 16-30-10(1985); Wis. STAT. ANN. §§ 154.01-154.15 (West Supp. 1987); Wyo. STAT. §§ 35-22-101to 35-22-109 (Supp. 1987).15. See, e.g., Union Pac. Ry. v. Botsford, 141 U.S. 250 (1891) (refusing to compelpersonal injury plaintiff to undergo pretrial medical examination). The BotsfordCourt explained:No right is held more sacred, or is more carefully guarded, by the commonlaw, than the right of every individual to the possession and control of hisown person, free from all restraint or interference of others, unless by clearand unquestionable authority of law.Id. at 251. See also Schloendorf v. Society of New York Hosp., 211 N.Y. 125, 129-30,105 N.E. 92, 93 (1914) ("Every human being of adult years and sound mind has aright to determine what shall be done with his own body. .. ").16. See generally R. FADER & T. BEAUCHAMP, A HISTORY AND THEORY OF INFORMEDCONSENT (1986); F. RozovSKy, CONSENT TO TREATMENT (1984).17. In Maine, medical care only constitutes a battery if" 'the treatment is eitheragainst the patient's will or substantially at variance with the consent given.'"Wooley v. Henderson, 418 A.2d 1123, 1133 (Me. 1980) (quoting Downer v. Veilleux,322 A.2d 82, 89 (Me. 1974)). See generally W. PROSSER & W. KEETON, LAW OF TORTS§ 9, at 39 (5th ed. 1984).18. The state, for example, may compel vaccination where third party interestsexist. Jacobsen v. Massachusetts, 197 U.S. 11 (1905); In re President of GeorgetownCollege, 331 F.2d 1000 (D.C. Cir. 1964) (court order upheld authorizing blood transfu-sions against the wishes of a patient in a life-threatening situation where patient wasthe mother of a seven-month-old child), cert. denied, 377 U.S. 978 (1964); In reCaulk, 125 N.H. 226, 480 A.2d 93 (1984) (refusal to order termination of forced feed-ing of a competent non-terminal prison inmate refusing to eat).19. Cantor, A Patient's Decision to Decline Life-Saving Medical Treatment:Bodily Integrity v. the Preservation of Life, 26 RUTGERS L. REV. 228, 237 (1937). Seegenerally Note, Informed Consent in Maine: Woolley v. Henderson and the In-formed Consent Statute, 34 MAINE L. REV. 311 (1982).[Vol. 41:447WITHDRAWING MEDICAL CAREspect for bodily integrity and personal autonomy, many courts haveupheld a common law right to refuse life-sustaining medical care.2 0The right to make personal decisions affecting one's body is alsoprotected by the federal constitutional right to privacy. Althoughthe United States Constitution does not delineate explicitly a rightto privacy, the United States Supreme Court found this right to ex-ist in the "penumbra" of specific guarantees of particular amend-ments to the Constitution. The Court first articulated this federalconstitutional right in Griswold v. Connecticut,2 1 holding that mar-ried couples have a constitutional right to use contraceptives.2 TheCourt's recognition of a privacy right was later substantially ex-panded in the landmark case of Roe v. Wade2 3The Supreme Court has not recognized the right to refuse medicaltreatment as a separately protected fundamental interest.2 ' TheNew Jersey Supreme Court, however, in its landmark decision, In reQuinlan,25 held that the federal constitutional right to privacy en-compasses the right to forego life-preserving medical care. TheQuinlan court specifically held that the right to privacy is "broadenough to encompass a patient's decision to decline medical treat-ment under certain circumstances. 12 1 Numerous other state courtshave also found constitutional support for the right to refuse medi-cal treatment.27The courts have also held that the right to refuse medical care isnot forfeited merely upon the loss of one's competency.28 Because20. See, e.g., Bartling v. Superior Court, 163 Cal. App. 3d 186, 209 Cal. Rptr. 220(1984) (extending right to withdraw life-sustaining care to incurably, though not ter-minally ill, competent adult patients); In re Gardner, 534 A.2d 947, 952 (Me. 1987);Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 739-40, 370N.E.2d 417, 424 (1977); In re Storar, 52 N.Y.2d 363, 376, 420 N.E.2d 64, 70 (1981),cert. denied, 454 U.S. 858 (1981); In re Coyler, 99 Wash. 2d 114, 121-22, 660 P.2d 738,743 (1983) (en banc).21. 381 U.S. 479 (1965).22. Id. at 485-86.23. 410 U.S. 113 (1973) (recognizing the right of a woman to terminate her preg-nancy as implicit in the right of privacy).24. But see Doe v. Bolton, 410 U.S. 179, 213 (Douglas, J., concurring) ("the free-dom to care for one's health and person" is a fundamental right).25. 70 N.J. 10, 355 A.2d 647 (1976), cert. denied, 429 U.S. 922 (1976).26. Id. at 40, 355 A.2d at 663.27. See, e.g., Rasmussen v. Fleming, 154 Ariz. 207, 215, 741 P.2d 674, 682 (1987);Foody v. Manchester Memorial Hosp., 40 Conn. Supp. 127, 131, 482 A.2d 713. 717(1984); Brophy v. New England Sinai Hosp., 398 Mass. 417, 430, 497 N.E.2d 626, 633(1986); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 742,370 N.E.2d 417, 426 (1977); In re Farrell, 108 N.J. 335, 348, 529 A.2d 404, 410 (1987).But see John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 580, 279 A.2d 670,672 (1971) (declaring that "there is no constitutional right to choose to die," andordering a blood transfusion for a Jehovah's Witness whose mother refused to con-sent on religious grounds).28. See, e.g., Foody v. Manchester Memorial Hosp., 40 Conn. Supp. 127, 482 A.2d1989]MAINE LAW REVIEWincompetent patients, by definition, are unable to express eithertheir consent or dissent with regard to the proposed medical care,the courts have allowed the right to be exercised by a proxy deci-sionmaker2 9 Courts have developed two standards to guide surro-gate decisionmaking: the substituted judgment and best intereststests. Under the substituted judgment standard,3 0 the proxy is re-quired to make treatment decisions consistent with what the incom-petent, if able to speak, would choose himself.3 1In reaching the decision, the proxy may consider any prior direc-tives of the patient as well as general statements indicating the pa-tient's likely preferences and values.32  The proxy, however, mustconsider the probative value of these statements in light of their re-moteness, consistency, thoughtfulness, maturity, and specificity.33The use of substituted judgment analysis has been criticized inthree respects. First, substituted judgment is a fiction when evidenceof the patient's wishes is unavailable. For example, in Superinten-dent of Belchertown State School v. Saikewicz,3 4 the court appliedthe test to a patient who had been profoundly mentally retardedsince birth. Although the patient clearly was never able to indicate achoice or preference regarding future medical care, the court errone-ously applied substituted judgment.3 5 Second, substituted judgment713, 718 (Super. Ct. 1984); In re Spring, 380 Mass. 629, 634, 405 N.E.2d 115, 119(1980) ("[A] competent person has a general right to refuse medical treatment inappropriate circumstances . . . . The same right is also extended to an incompetentperson . . ... "); In re Torres, 357 N.W.2d 332, 339 (Minn. 1984) ("Those jurisdictionswhich have already considered the issues raised on this appeal have uniformly upheldthe right of an incompetent to refuse life-sustaining treatment . . ").29. In re Barry, 445 So. 2d 365, 370 (Fla. Dist. Ct. App. 1984) (the right to refusemedical treatment "would be an empty right if one who is incompetent were notgranted the right of a competent counterpart to exercise his rights.").30. Historically, the doctrine of substituted judgment had been used as a proce-dural tool to authorize gifts from estates of incompetent persons. Robertson, OrganDonation by Incompetents and the Substituted Judgment Doctrine, 76 COLUt, L.REv. 48, 57 (1976).31. John F. Kennedy Memorial Hosp., Inc. v. Bludworth, 452 So. 2d 921, 926 (Fla.1984); Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 752-53, 370N.E.2d 417, 431 (1977).32. In re Conroy, 98 N.J. 321, 361-62, 486 A.2d 1209, 1229-30 (1985).33. In re Coyler, 99 Wash. 2d 114, 132-33, 660 P.2d 738, 748 (1983).34. 373 Mass. 728, 370 N.E.2d 417 (1977).35. Webber, Substituted Judgment Doctrine: A Critical Analysis, 1 IssuEs IN L.& MED. 131, 145-46 (1985). In criticizing the court's analysis in Saikewicz, Webberexplained:When the incompetent not only leaves no evidence of his intent, but nevereven could formulate legally effective wishes, as in Saikewicz, the courtmust struggle with a complete absence of guiding factors. In such circum-stances, efforts to ascertain the incompetent's intent are doomed from thestart: courts cannot attribute a legally conclusive intent to an incompetentwithout deriving that intent from sources external to the incompetent. Sub-stituted judgment requires the court to piece together testimony from rela-[Vol. 41:447WITHDRAWING MEDICAL CAREdoctrine permits decisionmakers to shift responsibility for a pa-tient's death from themselves to the patient by requiring the deci-sionmakers to pretend they are deciding what the incompetent pa-tient would do.36 Third, it is conceptually infirm to claim undersubstituted judgment to effectuate a patient's constitutional or com-mon law right to make medical decisions, when, in fact, no priordecision had been made by the patient.3"Recognizing at least some of the limitations of the substitutedjudgment standard, the New Jersey Supreme Court in In re Con-roy 5 articulated an alternative standard, the so-called "best inter-ests" standard, whereby treatment could be terminated even whenthe patient's desires were not clear.39 Under the Conroy best inter-ests standard,"' treatment could be terminated if the burdens of thepatient's continued life, in terms of unavoidable pain, markedly out-weighed its benefits.41 This standard, however, has been criticized asbeing too narrowly focused on the patient's pain to the exclusion ofother objective criteria such as dignity and quality of life.'2Whether based upon substituted judgment or best interests analy-sis, the right to refuse medical treatment is not absolute.4 3 Againstthe patient's interest in determining the course of his own medicalcare, the courts have weighed several state interests including pre-serving life, preventing suicide, protecting innocent third parties andtives and acquaintances to construct an underlying persona who then repre-sents and decides for the incompetent. The entire endeavor appears morean exercise in fictional characterization than in enhancement of rights.Id.36. See Note, Live or Let Die: Who Decides An Incompetent's Fate? In re Storarand In re Eichner, 1982 B.Y.U. L REv. 387, 392-93 ('[Tlhe doctrine of substitutedjudgment permits [the proxy] to imagine that the incompetent is allowing himself todie.").37. See Rhoden, Litigating Life and Death, 102 HARV. L Rv. 375, 389-90 (1988).38. 98 N.J. 321, 486 A.2d 1209 (1984).39. Id. at 366, 486 A.2d at 1232.40. The Conroy court actually delineated two "best interests" standards, the "lim-ited-objective" test and the "pure-objective" test. 98 N.J. In re Conroy, 321, 365, 486A.2d 1209, 1232-33. See Note, In re Conroy. Forging a Path to Death with Dignity,67 B.U. L REv. 365, 378-79 (1987).41. Id.42. Id. at 1247 (Handler, J., dissenting) (narrow focus on pain "eclipses a wholecluster of other human values that have a proper place in the subtle wing that willultimately determine how life will end"). See also PREsiDENT's CouUSsIoN FOR THESTUDY OF ETHIcAL PROBLEMS IN MEDICINE AND BIotEDIcAL AND BEHAVIORAL RE-SEARCH, DECIDING To FoREGo LIFE-SUSTAINING TREATMENT 135 (1983) [hereinafterPRESIDEN 'S CoMMISsIoN REPoir] (decisionmaking criteria should include "relief ofsuffering, the preservation or restoration of functioning, the quality as well as theextent of life sustained.").43. Rasmussen v. Fleming, 154 Ariz. 207, 216-17, 741 P.2d 674, 683-84 (1987);Foody v. Manchester Memorial Hosp., 40 Conn. Supp. 127, 482 A.2d 713, 718 (Super.Ct. 1984); Satz v. Perlmutter, 362 So. 2d 160, 162-64 (Fla. Dist. Ct App. 1978), aold,379 So. 2d 359 (Fla. 1980).19891MAINE LAW REVIEWmaintaining the ethical integrity of the medical profession." Appar-ently, however, no court has found any state interest to outweigh thedecisional interests of a PVS patient.45III. THE CASE OF JOSEPH V. GARDNERIn In re Gardner,'4 the superior court authorized the withdrawalof life-preserving care from Joseph V. Gardner, an incompetent pa-tient at Central Maine Medical Center (CMMC).4 7 On May 11, 1985,Gardner, then twenty-two years old, suffered "severe, permanentand totally disabling" injuries to his head when he fell from theback of a moving truck .4 Despite surgical and rehabilitative efforts,Gardner never regained consciousness after the accident.'9 Therewas no evidence that he experienced any thought processes, emotionor pain after the accident.50 Uncontroverted medical testimonyshowed that Gardner would never "regain any level of human func-tioning beyond his primitive, reflexive and biological level of exis-tence."5 1 Because of Gardner's inability to chew or swallow food, nu-trition and hydration were provided via a nasogastric (NG) tubeinserted through his nose and esophagus into his stomach.52 In In reGardner, the parties sought termination of the latter medical inter-vention. 5 Medical experts testified that without the benefit of nutri-tion and hydration provided by the NG tube, Gardner's death wouldcome within three to fourteen days.5Prior to his unfortunate accident, Gardner had been a veryhealthy and active man and had participated in a variety of athlet-ics.5 5 Prior to the accident, Gardner made several oral statementsabout being in a permanent, vegetative state and being maintained44. Rasmussen v. Fleming, 154 Ariz. at 216-19, 741 P.2d at 683-85; In re Conroy,98 N.J. 321, 348, 486 A.2d 1209, 1223-26 (1984); In re Coyler, 99 Wash. 2d 114, 122-23, 660 P.2d 738, 743-44 (1983) (en banc). See Comment, Balancing the Right to Diewith Competing Interests: A Socio-Legal Enigma, 13 PEPPERDINE L. REV. 109, 112-16(1985).45. See, e.g., In re Peter, 108 N.J. 365, 380, 529 A.2d 419, 427 (1987) ("[W]e findit difficult to conceive of a case in which the state could have an interest strongenough to subordinate a patient's right to choose not to be artificially sustained in apersistent vegetative state.").46. 534 A.2d 947 (Me. 1987).47. Id. at 949.48. Id.49. Id.50. Id.51. Id.52. Id.53. Id.54. Id. In fact, Gardner died on December 25, 1987. Maine Sunday Telegram,Dec. 27, 1987, at 1, col. 6.55. In re Gardner, No. CV-86-312, slip op. at 6 (Me. Super. Ct., And. Cty., Aug.14, 1987).[Vol. 41:447WITHDRAWING MEDICAL CAREvia medical technology.56 In 1983, Gardner's girlfriend, who workedat a nursing home, described to him the dire medical conditions ofmany of the patients that she observed there.5 7 In response, Gardnersuggested that people kept alive "on machines" lose their dignityand that, rather than live like that, he would rather die.5 8 About amonth before his accident, Gardner was watching a television pro-gram involving comatose patients with a close friend and said that ifhe were ever to suffer an accident and become a "vegetable" hewould prefer to die."9On July 30, 1986, Gardner's mother and legal guardian,10 havingconceded all hope of her son's recovery, made a request to CMMCthat her son "be permitted to die and the feeding tube be re-moved.""' Upon this request, CMMC petitioned the superior courtfor a declaration of both Gardner's rights and CMMC's responsibili-ties with respect to the proposed termination of life-preservingcare."2 CMMC took no position regarding the withdrawal of treat-ment.6" Upon the request of CMMC, the superior court appointed aguardian ad litem to act in Gardner's best interests.0' The guardianad litem, Jon S. Oxman, Esquire, ultimately took the position thatGardner's medical care should be terminated."" The state was repre-sented by both the Maine Department of Human Services (DHS)coand by the District Attorney's Office. 17 DHS is generally chargedwith the "supervision of the interests of health and life of the citi-zens of the State."68 Specifically, DHS, through its Adult ProtectiveServices (APS) program,69 is charged with the protection of incapac-itated and dependent adults.70 Insofar as the withdrawal of medicalcare was consistent with Mr. Gardner's wishes, DHS supported thetermination of treatment.7 ' The District Attorney, on the otherhand, opposed "any action that [would] alter the [then] current56. In re Gardner, 534 A.2d at 953.57. Id.58. Id.59. Id.60. On June 30, 1985, Rosemary Sacre, Gardner's mother, was appointed as legalguardian. In re Gardner, No. CV-86-312, slip op. at 6 & n.3 (Me. Super. CL, And.Cty., Aug. 14, 1987).61. Id. slip op. at 6 & n.4.62. Id. slip op. at 1 (citing Maine's Declaratory Judgment Act, Ma. Ray. STAT.ANN. tit. 14 §§ 5951-5963 (1980 & Supp. 1988-1989)).63. Id. slip op. at 2.64. Id. slip op. at 3.65. Id.66. Id. slip op. at 2.67. In re Gardner, 534 A.2d 947, 949 (Me. 1987).68. ME. REv. STAT. ANN. tit. 22, § 3 (Supp. 1988-1989).69. Id. § 3470-3476.70. Id. § 3473.71. In re Gardner, 534 A.2d at 949.1989]MAINE LAW REVIEWcourse of treatment and which [would] hasten or directly result inGardner's death.'72The superior court ruled that the right to refuse medical care wassupported by both constitutional7 3 and common law,74 that the rightapplied equally to incompetent patients, 7 and that the patient's le-gal guardian had the authority to effectuate the rights of the pa-tient.7s In deciding whether the termination of Gardner's medicalcare was proper, the lower court invoked a two-pronged analysis.Under the "medical prong," the court required Gardner's legalguardian to show, by clear and convincing evidence, that Gardnerwas "(1) incurably ill, (2) with irreversible brain damage (3) in apermanent, chronic, vegetative state (4) without any cognitive pow-ers and unable to respond to any stimuli, and (5) not likely ever torecover." 7 Under the "individual prong," the court required Gard-ner's legal guardian to show, by clear and convincing evidence, thatGardner would want the medical care to be terminated.78 In deter-mining Gardner's subjective intent to refuse medical care, the courtconsidered the oral statements made by him prior to his incompe-tency 9 as well as conclusions that could be drawn from the activelifestyle that he enjoyed prior to the accident.80 The superior courtconcluded that Gardner "if he were able to, would reject any treat-ment which would keep him alive in a persistently vegetativestate." '81 Accordingly, the superior court held that Gardner's legalguardian had legal authority to order the termination of care "if shedeem[ed] it to be in his best interests. 8 2In appealing the superior court's decision authorizing the with-drawal of medical care from Gardner, the District Attorney arguedthat the evidence did not support a finding that Gardner would72. In re Gardner, No. CV-86-312, slip op. at 3 (Me. Super. Ct., And. Cty., Aug.14, 1987).73. In finding support for a constitutional right to refuse medical care, the supe-rior court invoked the right of privacy articulated by the Supreme Court in Griswoldv. Connecticut, 381 U.S. 479, 484-85 (1965), and relied upon by the New Jersey Su-preme Court's decision in In re Quinlan, 70 N.J. 10, 40, 355 A.2d 647, 663 (1976). Thesuperior court found that the right to refuse medical care was included in the "Natu-ral rights" provision of the Maine Constitution, ME. CONST. art. I, § 1, which provides:"All men are born equally free and independent, and have certain natural, inherentand unalienable rights, among which are those of enjoying and defending life andliberty, acquiring, possessing and protecting property, and of pursuing and obtainingsafety and happiness." See In re Gardner, No. CV-86-312, slip op. at 16-17.74. In re Gardner, No. CV-86-312, slip op. at 23.75. Id. slip op. at 16-17.76. Id. slip op. at 26-27.77. Id. slip op. at 14.78. Id. slip op. at 14-15.79. Id. slip op. at 26.80. Id.81. Id. slip op. at 23 (emphasis added).82. Id. slip op. at 27.[Vol. 41:447WITHDRAWING MEDICAL CAREwant the medical treatment terminated"3 and that, notwithstandingsuch a finding, the state's interests in preserving life and preventingsuicide outweighed any putative rights of Gardner.' In reviewingthe record, the Law Court, in a decision written by Chief JusticeMcKusick, held that the superior court's findings with regard toGardner's subjective intent were properly supported by clear andconvincing evidence. 5 The Law Court stated that Gardner had acommon-law right to refuse life-preserving medical care" and thathe did not forfeit this right merely by his loss of competency. 7 TheLaw Court endorsed the superior court's substituted judgment anal-ysis,88 but based its affirmance of the court's order solely on thegrounds that Gardner had made a prior decision in fact to refusemedical care. 9 The Law Court stated: "In affirming the judgment* . . we do not find it necessary to go beyond Gardner's own per-sonal decision. Gardner's case is entirely different from those casesof 'substituted judgment' where the patients, now incompetent, havenever stated their intent . . .90The Law Court recognized that the right to refuse medical care isnot absolute and must be balanced against certain state interests.0'It found none, however, "sufficiently strong to outweigh Gardner'sspecific personal decision."92Finally, the Law Court rejected the argument that medical proce-dures providing food and water should be non-withdrawable as amatter of law.93 To the argument that medical procedures providingnutrition and hydration have particular "symbolic importance" thatcategorically warrant against their withdrawal, the Law Court re-83. Brief of Appellant, District Attorney for Androscoggin County at 18.20, In reGardner, 534 A.2d 947 (Me. 1987) (No. CV-86-312).84. Id. at 13-16.85. In re Gardner, 534 A.2d 947, 949 (Me. 1987).86. Id. at 951. The Law Court did not adopt the superior court's conclusion thatthe right to refuse medical care was supported by the Maine Constitution.87. Id. at 956.88. Id. at 949.89. Id. at 949-50.90. Id. at 950.91. Id. at 955. The most important state interest at stake, according to the LawCourt, "is the interest in protecting from abuse those persons no longer able to carefor themselves." Id. The Law Court. however, found this interest not to be implicatedsince the decision to withdraw medical care was Gardner's own decision. Id. In fact,the Law Court stated that "the greater risk of abuse lies in disregarding such specifi-cally declared personal decisions and in imposing life-sustaining procedures upon thepatient contrary to his express will." Id. The Law Court also found that the state'sinterest in preventing suicide was not implicated since Gardner's chronic medicalcondition was not self-inflicted, id. at 955-56, and that the cause of death would bethe underlying medical disease, rather than the termination of medical treatment. Id.at 956.92. Id.93. Id. at 954-55.1989]MAINE LAW REVIEWsponded that any symbolic value is lost when artificial feeding andhydration is forced upon "someone in Gardner's unfortunate condi-tion. '94 Concluding that Gardner's right to have all medical carewithdrawn outweighed any proposed state interest,95 the Law Courtupheld the superior court's order authorizing the termination ofcare.96Three members of the Law Court, Justice Clifford, joined by Jus-tices Roberts and Wathen, dissented.97 While agreeing with the LawCourt's finding that Gardner was in a "persistent, vegetative and in-cognitive condition," ' the dissent sharply criticized the Law Court'sfinding that "Gardner would want the nasogastric feeding and hy-dration tube removed."9 The dissent, adopting the superior court'scharacterization of Gardner's oral statements made prior to the acci-dent as "'casual and of a general nature,' "'0 criticized the LawCourt for its reliance upon them in making its findings. 101 The dis-sent also criticized the Law Court's decision as "premised on theunarticulated notion that . . . Gardner's life [was] not worthmaintaining."'12Notwithstanding a finding that Gardner, expressly or impliedly,manifested his desire not to be maintained in a persistent, vegeta-tive state, the dissent argued that the state's interests in preservinglife and preventing suicide outweighed Gardner's right to refusemedical treatment.10 3 The dissent also argued that medical proce-dures providing nutrition and hydration should not be withdrawableabsent a finding that such procedures are invasive and pain-causing.'"IV. DISCUSSIONThis Note maintains that the Law Court in In re Gardner erred infinding that Gardner made an actual decision prior to his accidentto refuse medical treatment. Insofar as the Law Court construed thesuperior court's decision as based "in part upon Gardner's own per-94. Id. The Law Court also rejected the analogical argument that since the MaineLiving Will Act, M. Rav. STAT. ANN. tit. 22, §§ 2921-2931 (Supp. 1988-1989), distin-guished nutrition and hydration procedures from other medical procedures, the courtshould draw the same conclusion. In re Gardner, 534 A.2d at 954-55.95. Id. at 955.96. Id. at 956.97. Id. (Clifford, J., dissenting).98. Id.99. Id.100. Id. at 957.101. Id.102. Id. at 958.103. Id. at 957-58.104. Id. at 958. The dissent argued that nutrition and hydration procedures have"symbolic" importance which warrant non-withdrawability, and analogized to the nu-trition and hydration distinction made by the Maine Living Will Act.[Vol. 41:447WITHDRAWING MEDICAL CAREsonal decision,"' ° the Law Court misstated the lower court'sfindings.While the superior court found that, if Gardner were able tospeak, he would choose nontreatment,10 it did not find that Gard-ner had in fact made a choice prior to his accident. After describingGardner's earlier statements as "casual and of a general nature,"'10the superior court concluded:Although Mr. Gardner never expressed his wishes in writing ororally as to specific circumstances, the court is convinced that thesestatements are indicia of his desires and coupled with evidence ofhis active life style allows the court to find, as his mother and theguardian ad litem advocate; that, if Joseph Gardner could commu-nicate his wishes to us today, he would want the nasogastric feed-ing and hydration tube removed.108As the foregoing excerpt indicates, the superior court's conclusionwas not grounded on Gardner's actual past decision; rather, it wasbased on earlier casual and general statements which were "indiciaof his desires" sufficient to evince what he "would want." As such,the lower court's conclusion constituted a substituted judgment, nota discovery of actual intent. The Law Court essentially generated itsown finding on this factual matter. It is, of course, axiomatic thatcourts of review cannot make new findings of fact. 09 To this extent,the Law Court acted improperly.Furthermore, the Law Court's finding that Gardner had made anactual decision to refuse treatment could not be supported by the"clear and convincing evidence" standard articulated in Taylor v.Commissioner of Mental Health."10 In Taylor, the Law Court de-fined clear and convincing evidence as that which is "highly proba-ble."'1 By the superior court's own characterization, Gardner's pre-accident statements were "casual and of a general nature."'1 2 It con-105. Id. at 949.106. In re Gardner, No. CV-86-312, slip op. at 23 (Me. Super. CL., And. Cty., Aug.14, 1987).107. Id. slip op. at 9.108. Id.109. See In re Belgrade Shores, Inc., 359 A.2d 59, 64 (Me. 1976) (noting that theLaw Court "was not intended to be, and is not, a court of original fact-finding juris-diction."). See also Mr. REv. STAT. ANN. tit. 4, § 57 (Supp. 1988-1989). See generallyF. JAms & G. HAZARD, Criv PROCEDURE § 12.8 (3rd ed. 1985).110. 481 A.2d 139, 153 (Me. 1984).ill. Id.112. In re Gardner, No. CV-86-312, slip op. at 9 (Me. Super. CL, And. Cty., Aug.14, 1987). In re O'Connor, 72 N.Y.2d 517, 532-34, 531 N.E.2d 607. 614-15, 534N.Y.S.2d 886, 893 (1988) (although 77-year-old incompetent woman had repeatedlymade comments that she would not want to lose her dignity before her death andthat life-support procedures were "monstrous," the court did not find these remarksto be clear and convincing evidence of the patient's desire to forego medical proce-dures providing food and water).1989]MAINE LAW REVIEWfounds reason to suggest that Gardner's statements clearly and con-vincingly show an actual decision on his part to forego medicalcare.113 The Law Court has established a precedent whereby infor-mal and abstract remarks become life and death "decisions. "114This Note contends that the Law Court erred in claiming to effec-tuate Gardner's right of self-determination. If Gardner, prior to hisincompetency, had truly made an express future-oriented decision toforego medical care, enforcement of his right to refuse treatmentwould be at least conceptually possible.115 Since Gardner made nosuch decision, however, it is misleading to claim to effectuate hisright to choose. The Law Court encountered the same conceptualdilemma in its endorsement of the superior court's claim to effectu-ate Gardner's right of self-determination under substitutedjudgment.An incompetent's right to refuse medical treatment may be exer-cised by a surrogate decisionmaker if the incompetent has made aprior choice.116 Yet, an incompetent who has failed to explicitlymake a choice cannot claim a right of self-determination.11 TheLaw Court failed to comprehend this logical problem insofar as itendorsed the superior court's substituted judgment analysis. In itssubstituted judgment analysis, the superior court treated Gardner'sgeneral comments and observations about hypothetically intolerableliving conditions, which are at best evidence of general preferences,as though they were specific and solemn life or death choices.118While evidence of an incompetent's likely preference for nontreat-113. The Law Court failed to properly consider the context in which Gardner'sstatements were made, their abstract nature or Gardner's youth. See In re Coyler, 99Wash. 2d 114, 131-32, 660 P.2d 738, 748 (1983) (court should consider context ofstatements and the age and maturity of speaker).114. For example, suppose a person made statements that, if he were ever in anincurable state, he would want to be "frozen" until a cure were found. Does this man-ifest a decision never to forego treatment? Some courts, recognizing the problem withapplying a clear and convincing standard, have required that the proxy simply exer-cise his "best judgment" about what the patient would want. See In re Peter, 108N.J. 365, 377, 529 A.2d 419, 425 (1987) (quoting In re Quinlan, 70 N.J. 10, 41 (1976));In re Colyer, 99 Wash. 2d 114, 132, 660 P.2d 738, 747 (1983).115. See, e.g., Bartling v. Superior Court, 163 Cal, App. 3d 186, 190-91, 209 Cal.Rptr. 220, 222 (1984) (patient, while still competent, executed a "living will" makingclear his choice that he no longer wished to be maintained by "artificial means orheroic measures").116. See PR SIDEN'S COMMISSION REPORT, supra note 44, at 136; Brophy v. NewEngland Sinai Hosp., 398 Mass. 417, 431-32, 497 N.E.2d 626, 634-35 (1986); Superin-tendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 746-47, 370 N.E.2d417, 431 (1977).117. See Rhoden, Litigating Life and Death, 102 HARv. L. REv. 375, 389 (1988)(criticizing courts for making treatment decisions that fail to distinguish actual choicefrom general remarks of preference).118. In re Gardner, No. CV-86-312, slip op. at 6-9 (Me. Super. Ct. And. City.,Aug. 14, 1987).[Vol. 41:447WITHDRAWING MEDICAL CAREment may be relevant under certain decisionmaking standards,110 anincompetent has a right to the enforcement of his choices only, nothis mere preferences. 20 Only when a proxy is acting upon an incom-petent's prior expressed choice can the proxy claim he is enforcingthe incompetent's exercise of his right of self-determination. 12 Inexplaining the critical difference between prior choices and priorpreferences, Nancy Rhoden uses the following example:Inmates on death row have a right to choose what they want to eatfor their final dinner. Suppose inmate A specifically requests steak,french fries, and a chocolate shake. The prison chef, however, be-lieves that a macrobiotic diet is far more healthful, and brings Ahis tastiest concoction of rice, wheatberries, and tofu. Despite thedelicacy of the fare, A's right to choose has been infringed. How-ever, suppose inmate B, whose dietary inclinations and executiondate are identical to A's, is busy doing other things and forgets toput in his dinner request. Although the chef is well aware of B'spreferences, he brings him the macrobiotic dinner as well. The chefhas certainly not made the most kind or considerate choice. Buthas he violated B's rights? It seems not, inasmuch as B never ex-plicitly made a choice. Moreover, had the chef brought B a juicysteak, we would say that he made a compassionate choice, even theright choice, but not that he satisfied B's rights."2Accordingly, the Law Court was imprecise in claiming to enforceGardner's right to refuse medical care since Gardner expressed, atbest, a general preference rather than an actual choice fornontreatment.Significantly, the superior court order affirmed by the Law Courtdid not order the termination of Gardner's NG tube care; rather, itmerely granted Gardner's legal guardian discretion to demand suchtermination if she believed it was in his "best interests."'" If Gard-ner's right to have his medical care discontinued is to be taken seri-ously, however, any decisionmaking discretion delegated to his legalguardian is misplaced.1 2 4 Perhaps the Law Court's failure to amendthe court order indicates its own uncertainty about the appropriate-ness of a personal rights-based analysis in these cases.This Note does not suggest, however, that a consideration ofGardner's likely preference is irrelevant. The criticism lies with theLaw Court's contention that, in considering Gardner's preferences, itwas effectuating a right of self-determination. This Note maintains119. For example, under the family decisionmaking model advocated by thisNote, see infra notes 126-39 and accompanying text, the family would routinely con-sider evidence suggesting patient's preferences.120. Rhoden, supra note 117, at 388-89.121. Id.122. Id.123. In re Gardner, No. CV-86-312, slip op. at 27 (Me. Super. CL).124. Indeed, the court should simply order its termination.1989]MAINE LAW REVIEWthat the Law Court was too eager to couch its decision within thefamiliar framework of a person's right to refuse medical care. Tothis extent, the Law Court stretched the concept of an incompe-tent's right of autonomy past its breaking point. 2 ,Finally, this Note criticizes the Law Court for its failure to definethe scope of judicial participation in medical decisionmaking forPVS patients.' 2 The Law Court left unanswered whether a courtorder is always necessary prior to the termination of life-preservingcare. This Note recommends that the Law Court endorse a standardthat is consistent with both traditional guardianship principles andour historic deference to family decisionmaking.A legal guardian appointed under the Maine Probate Code hasboth a right and a duty to act in the best interests of the incompe-tent ward. 127 In particular, "[a] guardian may give consents and ap-provals that may be necessary to enable the ward to receive medical. . . care. .. "' When a guardian finds a proposed course of med-ical care not to be in the incompetent's best interests, he is author-ized to withhold consent to such care. Without the guardian's con-sent, any bodily care given to the incompetent is tortious. 129The guardian's decision to refuse consent may be challenged, ofcourse, as contrary to the incompetent's best interests. Such chal-lenges are properly raised in the probate court which has "exclusivejurisdiction over guardianship proceedings.' ' 30 Consistent with es-tablished guardianship principles, the petitioning party131 shouldbear the burden of proving that the guardian's decision is unreason-able. 132 To require the family to prove, by clear and convincing evi-125. In no case is the application of a rights-based analysis more misplaced thanin Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 752-55,370 N.E.2d 417, 419 (1977) (claiming to effectuate the right of choice of a person whowas, and always had been, mentally retarded).126. The Law Court could properly establish guidelines for future decisionmak-ing. See, e.g., In re L.H.R., 253 Ga. 439, 439, 321 S.E.2d 716, 718 (1984) ("The pri-mary purpose for the appeal is to afford this court an opportunity to set forth guide-lines for future handling of [right-to-die cases].").127. In re Richard H., 506 A.2d 221, 222 (Me. 1986).128. ME. REV. STAT. ANN. tit. 18-A, § 5-312(a)(3) (1981).129. See supra notes 16-19 and accompanying text.130. ME. REV. STAT. ANN. tit. 18-A, § 5-102(a) (1981). See also id. § 1-302(a) (theprobate court "has jurisdiction over all subject matter relating to . . . protection of. . . incapacitated persons . . ").131. Petitioning parties should be limited to family members, physicians, hospi-tals, and the state.132. Defining what is "unreasonable" is, of course, a crucial and debatable matter.See Rhoden, supra note 117, at 437 ("The general standard for reasonableness shouldturn on the question whether the patient retains any capacity to experience and enjoylife."); Comment, The Best Interests of Incompetent Patients: The Capacity for In-terpersonal Relationships as a Standard for Decisionmaking, 76 CALIF. L. REv. 897,926-37 (1988) (the best interests of an incompetent patient should be determined byconsidering "quality of life," specifically the capacity for interpersonal relationships).[Vol. 41:447WITHDRAWING MEDICAL CAREdence, that its decision is either consistent with the incompetent'ssubjective wishes or in his best interest is unreasonable. Such a stan-dard unfairly subordinates our traditional deference to family deci-sionmaking and guardianship principles to a presumption in favor ofthe medical status quo.Accepting a presumption in favor of the medical status quo, thatis, continued treatment, is unreasonable in two respects. First, itcreates an unjustified distinction between withholding and with-drawing medical treatment. Most courts and commentators haveconcluded that withdrawing a treatment does not differ morallyfrom withholding one and should require no greater justification. 133Yet, if treatment may be withdrawn only after it is proven to beunwanted or unnecessary, a substantial practical distinction be-tween withdrawal and withholding of treatment is created. Second,it fosters medical paternalism insofar as it presumes physicians tobe better suited than families in making decisions on behalf of in-competent patients. Physicians' treatment decisions are not moti-vated solely by a value in saving life. Rather, they reflect a dynamicbetween ethical values, medical socialization,13' the impact of medi-cal technology,13 5 and the fear of legal liability.130133. PRESMENTS COMImSSION REPoRT, supra note 42, at 76:Ironically, if there is any call to draw a moral distinction between with-holding and withdrawing, it generally cuts the opposite way from the usualformulation: greater justification ought to be required to withhold than towithdraw treatment. Whether a particular treatment will have positive ef-fects is often highly uncertain before the therapy has been tried. If a trial oftherapy makes clear that it is not helpful to the patient, this is actual evi-dence (rather than mere surmise) to support stopping, because the thera-peutic benefit earlier was a possibility, has been found to be clearlyunobtainable.Id.134. Physicians intensely socialized to be decisive, action-oriented healers may beinstinctively unable to refrain from taking some type of medical action. See LPRAYER, Mxaiciz Am CuLxuRE 139-43 (1988) (aggressive nature of "Americanmedicine" is "obsessive-compulsive.").Medical practice is also a reductionist enterprise insofar as it tends to treat diseasesrather than persons with diseases:If human problems are reduced to purely biological ones, a "treatment" isoften available even if it does little for the person as a whole. For example,a persistently vegetative person's fever can be cured without regard towhether this benefits the patient as a person. This reductionism, in con-junction with modern medicine's teachings that one must act, leads to atendency to perform a procedure when it benefits only a body part, and notan integrated patient.Rhoden, supra note 117, at 422.135. There is a "technological imperative" whereby a technology's mere existencedemands its use. See I. KENNEDY, THE UNMASING OF M mmIE 143 (1981) ("[T~hemere existence of equipment dictates that it be used.").136. Physicians and hospitals justify their continued treatment of incompetentpatients without the consent of the legal guardian on the grounds that they fear civil1989]MAINE LAW REVIEWRequiring the petitioner to prove that the family's decision to re-fuse consent to a proposed course of medical care is preferable inso-far as it is consistent with both established guardianship principlesand our traditional deference to family decisionmaking. Numerousreasons have been put forth to justify judicial deference to familydecisions made on behalf of incompetent patients:(1) The family is usually most concerned about the welfare of thepatient; (2) the family is generally most cognizant of the patient'spreferences and values; (3) the family should be recognized as asocial unit that deserves to be accorded decisionmaking responsi-bility in private matters that affect its members; (4) societal valuesencourage participation of a family as a critical aspect of personalreinforcement and satisfaction particularly where many traditionalsupport systems have dissolved; and (5) since the family relation-ship depends on an atmosphere of privacy and autonomy, institu-tions and the state should be hesitant to interfere, especially re-garding issues which evoke widely varying and emotionally chargedresponses in society as a whole.137When the family and physician agree that medical treatmentshould be discontinued, no judicial intervention should be requiredif a guardian has already been appointed. 13 1 If physicians believethat guardians are making unreasonable choices, they "should nottake it upon themselves to act in disregard of guardian decisions.Instead, physicians-like any citizens-should assume the responsi-bility of seeking judicial review of the competency of the patient orthe reasonableness of the guardian decisions."1 3 9or criminal liability. In fact, most so-called "right to die" cases arise because a physi-cian or hospital refuses to honor the guardian's request. Some commentators, how-ever, have criticized physicians and hospitals for fictionalizing their liability risks.See, e.g., Armstrong & Cohen, From Quinlan to Jobes: The Courts and PVS Patients,18 HASTINGS CENTER REP. 37, 38 (Feb.-Mar. 1988) (noting that no reported civil caseshave been brought against a physician or hospital for terminating treatment upon aguardian's request). In only one criminal case have charges been brought against aphysician for terminating life-sustaining care and that was dismissed pre-trial. SeeBarber v. Superior Court, 147 Cal. App. 3d 1006, 1022, 195 Cal. Rptr. 484, 493 (Cal.Dist. Ct. App. 1983).137. Comment, The Role of the Family in Medical Decisionmaking for Incompe-tent Adult Patients: A Historical Perspective and Case Analysis, 48 U. Prrr. L. REV.539, 555 (1987).138. In re Colyer, 99 Wash. 2d 114, 127, 660 P.2d 738, 746 (1983) (en banc) ("Incases where physicians agree on the prognosis and a close family member uses hisbest judgment as a guardian to exercise the rights of the incompetent, intervention bythe courts would be little more than a formality."). See also PRESIDENT'S COMMISSIONREPORT, supra note 42, at 127-29; D. MEYERS, MEDICO-LEGAL IMPLICATIONS OF DEATHAND DYING, 381 (1981).139. Veatch, Limits of Guardian Treatment Refusal: A Reasonableness Stan-dard, 9 AM J.L. & MED. 427, 459 (1983).[Vol. 41:447WITHDRAWING MEDICAL CAREV. CONCLUSIONCoupled with the benefits of advancing medical technology aretremendous moral and legal conundrums. Deciding whether to with-draw life-sustaining care from a PVS patient presents such a di-lemma. The interests of the patient must not be underestimated.Likewise, however, the mere existence of a medical procedure doesnot justify its continued administration. In In re Gardner, the LawCourt reached a proper result in allowing medical care to be with-drawn. It failed, however, to articulate a standard by which this re-sult could be justified. Moreover, the Law Court failed to delineate aprocedure to assist future guardians in making decisions on behalfof incompetent patients. Assuredly, Maine will see more and more ofthe so-called "right to die" cases. In the absence of controlling legis-lation, it is crucial that the Law Court establish fair and expeditiousprocedures for future decisionmaking.John K. Veroneau** I would like to thank James Friedman, Professor of Law, University of MaineSchool of Law, for reading and commenting upon earlier drafts of this Note.19891

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