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As medical expertise and technologies improve, many patients who would otherwise die of their illnesses or injuries survive. For many of these patients and their families, the knowledge and therapies that save their lives are a blessing. Unfortunately for some, survival means not recovery, but rather a severely limited existence dependent on some form of life-sustaining treatment, such as a ventilator or feeding tube. For some of these patients, such an existence is not a blessing, but a curse, not a triumph over death, but rather a cruel prolonging of their dying. These patients, or their families, seek to have their life-supporting therapies withdrawn, allowing them to complete the process of dying which their bodies have already begun. Many patients are successful in having such treatments withdrawn. Success comes to others, though, only as the result of lengthy legal battles, which add to the grief of the patients and families involved.  Most state courts confronted with withdrawal-of-support problems have found that patients do indeed have the right to demand the termination of life-supporting therapies, and most state courts have found that right to be derived from the federal constitutional right of privacy. The Supreme Court of Missouri, however, in its 1988 decision Cruzan v. Harmon, came to the opposite conclusion.Nancy Cruzan is a young woman in a persistent vegetative state as the result of an automobile accident. Her parents and co-guardians sought an order allowing them to authorize the removal of the feeding tube through which Ms. Cruzan receives the necessary nutrition and hydration to remain alive. The Missouri court noted over four dozen withdrawal-of-support cases from other states that had  nearly unanimously  respected the patients' requests to have treatment halted. Despite that, the court found that Ms. Cruzan has no right of privacy or self-determination that can outweigh the  immense, clear fact of life in which the state maintains a vital interest.   The most troublesome aspect of the Cruzan decision was the court's assertion that because Ms. Cruzan feels no pain, the treatments she receives are  not burdensome  to her. The court reached this conclusion despite evidence that Ms. Cruzan had said she would not want to be maintained in such a condition and that she would not want her family to suffer the pain of seeing her in such straits. The court's statement shows a stunning lack of sensitivity to Ms. Cruzan's human dignity, a dignity that is given meaning by, among other things, individual rights of self-determination, the  right to be let alone.   Ms. Cruzan's parents and co-guardians appealed the Missouri decision to the United States Supreme Court. The Court heard arguments in Cruzan, its first withdrawal-of-support case, in December, 1989. This case gives the Court a chance to conclusively resolve the issue of how and by whom withdrawal-of-support decisions are made. A patient's decision to order the cessation of treatment is a personal medical decision and should be made, like any other personal medical decision, in the privacy of the doctor-patient relationship, not in a courtroom. A clear and definitive ruling by the Court that every patient has a right, guaranteed by the federal Constitution, to order treatment discontinued will return these treatment decisions to their proper place, the patient's bedside.  This Comment will discuss the problems created by the current state of affairs, which all too frequently forces patients and their families into the courts to have fundamental questions of medical treatment decided. It will then discuss the foundation of a patient's federal constitutional right to order the withdrawal of life-sustaining therapies. It is imperative that the Court clearly enunciate this right for many reasons; these will be discussed in the final section of this Comment

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Maine Law Review Volume 42 Number 1 Article 9 June 1990 Withdrawal of Life-Sustaining Treatment: Patients' Rights—Privacy Rights Patricia Lerwick University of Maine School of Law Follow this and additional works at: https://digitalcommons.mainelaw.maine.edu/mlr  Part of the Constitutional Law Commons, Law and Society Commons, Medical Jurisprudence Commons, Public Law and Legal Theory Commons, and the Supreme Court of the United States Commons Recommended Citation Patricia Lerwick, Withdrawal of Life-Sustaining Treatment: Patients' Rights—Privacy Rights, 42 Me. L. Rev. 193 (1990). Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol42/iss1/9 This Comment 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. WITHDRAWAL OF LIFE-SUSTAININGTREATMENT: PATIENTS'RIGHTS-PRIVACY RIGHTSI. INTRODUCTION*As medical expertise and technologies improve, many patientswho would otherwise die of their illnesses or injuries survive. Formany of these patients and their families, the knowledge and thera-pies that save their lives are a blessing. Unfortunately for some, sur-vival means not recovery, but rather a severely limited existence de-pendent on some form of life-sustaining treatment, such as aventilator or feeding tube. For some of these patients, such an exis-tence is not a blessing, but a curse, not a triumph over death, butrather a cruel prolonging of their dying. These patients, or theirfamilies, seek to have their life-supporting therapies withdrawn, al-lowing them to complete the process of dying which their bodieshave already begun. Many patients are successful in having suchtreatments withdrawn. Success comes to others, though, only as theresult of lengthy legal battles, which add to the grief of the patientsand families involved.Most state courts confronted with withdrawal-of-supportproblems have found that patients do indeed have the right to de-mand the termination of life-supporting therapies, and most statecourts have found that right to be derived from the federal constitu-tional right of privacy.1 The Supreme Court of Missouri, however, inits 1988 decision Cruzan v. Harmon, came to the oppositeconclusion.2Nancy Cruzan is a young woman in a persistent vegetative state asthe result of an automobile accident.' Her parents and co-guardians* The Maine Law Review has been considering a change in citation form, fromthe standard A Uniform System of Citation (Blue Book) form currently used to thatof The University of Chicago Manual of Legal Citation (Maroon Book). There arethree major differences a reader may notice between Blue Book and Maroon Bookformats. First, the Maroon Book is simpler, with fewer typeface conventions. Second,the Maroon Book allows the author to substitute plain-English signals for the terseintroductory signals of the Blue Book. Lastly, in Maroon Book style, although boththe state and regional reporter citations are given for each case, "pin" or "jump" citeswithin the case are given only for the regional reporter.The Maroon Book format was used for this Comment, to give both the staff andreaders of the Maine Law Review a chance to evaluate the different style. We at theLaw Review would appreciate your comments on the Maroon Book format.1. See text and notes below at p. 17-20.2. Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988) (en banc), cert. granted,U.S. - 109 S. Ct. 3240 (1989).3. Id. at 410-11. A persistent vegetative state results from neurologic destructionof the cerebral hemispheres with relative sparing of the brainstem. It is characterizedby "eyes-open unconciousness," in which a patient exhibits sleep-wake cycles; whenMAINE LAW REVIEWsought an order allowing them to authorize the removal of the feed-ing tube through which Ms. Cruzan receives the necessary nutritionand hydration to remain alive. 4 The Missouri court noted over fourdozen withdrawal-of-support cases from other states that had"nearly unanimously" respected the patients' requests to have treat-ment halted.5 Despite that, the court found that Ms. Cruzan has noright of privacy or self-determination that can outweigh the "im-mense, clear fact of life in which the state maintains a vitalinterest."8The most troublesome aspect of the Cruzan decision was thecourt's assertion that because Ms. Cruzan feels no pain, the treat-ments she receives are "not burdensome" to her.7 The court reachedthis conclusion despite evidence that Ms. Cruzan had said she wouldnot want to be maintained in such a condition and that she wouldnot want her family to suffer the pain of seeing her in such straits.8The court's statement shows a stunning lack of sensitivity to Ms.Cruzan's human dignity, a dignity that is given meaning by, amongother things, individual rights of self-determination, the "right to belet alone.""Ms. Cruzan's parents and co-guardians appealed the Missouri de-cision to the United States Supreme Court. The Court heard argu-ments in Cruzan, its first withdrawal-of-support case, in December,1989. This case gives the Court a chance to conclusively resolve theissue of how and by whom withdrawal-of-support decisions aremade. A patient's decision to order the cessation of treatment is apersonal medical decision and should be made, like any other per-sonal medical decision, in the privacy of the doctor-patient relation-ship, not in a courtroom. A clear and definitive ruling by the Courtthat every patient has a right, guaranteed by the federal Constitu-tion, to order treatment discontinued will return these treatment de-cisions to their proper place, the patient's bedside.This Comment will discuss the problems created by the currentstate of affairs, which all too frequently forces patients and theirthe eyes are open, they wander without focusing on or following objects or people inthe room. In addition, there is usually preservation of the cough and gag reflexes. Fora clear description of the distinctions between persistent vegetative state, coma, andbrain death, see Ronald E. Cranford, The Persistent Vegetative State: The MedicalReality (Getting the Facts Straight), 18 Hastings Center Rpt. 27, (Feb./March,1988).4. Cruzan, 760 S.W.2d at 410.5. Id. at 412-13.6. Id. at 424.7. "Nancy's care requirements, while total, are not burdensome to Nancy. Theevidence at trial showed that the care provided did not cause Nancy pain. Nor is thatcare particularly burdensome for her, given that she does not respond to it." Id.8. Id. at 443-44 (Higgins dissenting).9. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis dissenting).[Vol. 42:193WITHDRAWAL OF TREATMENTfamilies into the courts to have fundamental questions of medicaltreatment decided. It will then discuss the foundation of a patient'sfederal constitutional right to order the withdrawal of life-sustainingtherapies. It is imperative that the Court clearly enunciate this rightfor many reasons; these will be discussed in the final section of thisComment.II. INADEQUACIES OF THE CURRENT SYSTEMLegal answers, especially on a state-by-state, case-by-case basis, tothe questions presented by withdrawal-of-support cases are inade-quate for a variety of reasons. Some reasons relate to the character-istics of the legal decision-making process. Others are the result offriction between medical and legal processes, a friction aggravatedby transplantation of medical problems into the legal system.One problem with the legal decision-making process is evidentiarysufficiency. Courts have uniformly required that the high "clear andconvincing" standard be used to determine the adequacy of an indi-vidual's expressed desire not to be maintained by life-supportingmeasures. 10 This is the appropriate legal standard for courts to usewhen analyzing problems in which society must have great confi-dence in the answers the courts reach." The problem comes in de-ciding exactly what evidence meets that standard.In re Gardner, the first withdrawal-of-support case to come beforethe Supreme Judicial Court of Maine, provides an example of thedifficulty such an evidentiary standard presents.12 In Gardner, theLaw Court noted three different statements Mr. Gardner had madebefore his injury. One was a comment he had made to his girlfriend,who worked in a nursing home. He had told her he felt life-sus-taining measures robbed people of their dignity and that he "'wouldnot want to live. . . that way.' ,u Mr. Gardner had also told familymembers and a close friend in various discussions that he would notwant to live in a vegetative state." The court found that these com-10. Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674, 691 (1987); Eichner v.Dillon, 426 N.Y.S.2d 517, 545-46 (1980); In re Storar, 52 N.Y.2d 363, 438 N.YS.2d266, 420 N.E.2d 64, 72 (1981); Leach v. Akron Medical Center, 68 Ohio Misc. 1, 426N.E.2d 809, 815 (1980).11. In re Winship, 397 U.S. 358, 370 (1970) (Harlan concurring). See generallyAddington v. Texas, 441 U.S. 418 (1978) (use of clear and convincing standard in civilcommitment proceedings).12. In re Gardner, 534 A.2d 947 (Me. 1987). Mr. Gardner was a young man in apersistent vegetative state following a fall from a truck. The Supreme Judicial Courtof Maine, sitting as the Law Court, allowed the withdrawal of the feeding tube whichsustained Mr. Gardner's existence. For a detailed discussion of this case, see Com-ment, In re Gardner: Withdrawing Medical Care from Persistently Vegetative Pa-tients, 41 Me. L. Rev. 447 (1989).13. Id. at 953.14. Id.1990]MAINE LAW REVIEWments constituted clear and convincing evidence that Mr. Gardnerhad considered the possibility and personal implications of being de-pendent on life-sustaining therapies and that he had intended tohave such measures withdrawn.15 In contrast, the Superior Courthad found that the conversations referred to were "'casual and of ageneral nature rather than about specific cases.' "16The New Jersey Superior Court, in In re Quinlan, considered sim-ilar statements made by Karen Ann Quinlan, the patient whose fatewas at issue in that case." That court determined that because thestatements had not been made in reference to anyone with whosecare Ms. Quinlan had personally been involved, the statements wereabstract and merely theoretical, not valid expressions of her willwith respect to her own care.16 The New Jersey Supreme Courtagreed with this finding initially,"' only to decide nine years later, inthe context of a different case, that the initial ruling had beenincorrect.20On the other end of the spectrum is the determination of the NewYork Supreme Court in a recent decision, In re O'Connor.2 1 In thatcase, the daughters of an elderly nursing home patient, mentally in-competent and severely physically disabled as the result of a seriesof strokes, sought to prohibit the home's staff from inserting a naso-gastric tube into their mother's body as the only means of providingher with necessary nutrition and hydration.22 The patient had madeseveral statements over a number of years that she would neverwant to be maintained artificially if unable to care for herself.23 Indenying the daughter's request, the O'Connor court found that theseremarks were somewhat too specific, in that they were responses toMs. O'Connor's having observed another person's prolonged andpainful death. Because Ms. O'Connor's condition was neither pain-15. Id.16. Id. at 957 (Clifford dissenting).17. In re Quinlan, 137 N.J. Super. 227, 348 A.2d 801 (1975), aff'd at 70 N.J. 10,355 A.2d 647 (1976), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976)("Quinlan").18. Quinlan, 348 A.2d at 819.19. Quinlan, 355 A.2d at 664 (1976).20. The New Jersey Supreme Court, in another right-to-die decision, concludedthat it had erred in excluding Ms. Quinlan's statements as evidence "relevant to shedlight on whether [she] would have consented to the treatment if competent." In reConroy, 98 N.J. 321, 486 A.2d 1209, 1230 (1985). The Conroy court was careful topoint out that "the probative value of such evidence may vary depending on the re-moteness, consistency, and thoughtfulness of the prior statements or actions and thematurity of the person at the time of the statements or acts." Id. See also In re Jobes,108 N.J. 394, 529 A.2d 434, 445 (1987) (noting that patient's statements and attitudesabout life, death, and illness could indicate what the patient might have wanted).21. In re O'Connor, 72 N.Y.2d 517, 534 N.Y.S.2d 886, 531 N.E.2d 607 (1988).22. Id. at 608-10.23. Id. at 610-11.[Vol. 42:193WITHDRAWAL OF TREATMENTful nor terminal, the court reasoned the remarks were inapplicableto her own case.2"The above cases illustrate the difficulty courts have trying to as-sign evidentiary value to patients' remarks. Although any and all ofthe statements noted would be valuable as indicators of the pa-tient's attitudes toward life or death, they are all but impossible toassess as hard, precise facts.A second problem is that of recurrent litigation. This arises as aresult of the courts' need to make decisions based on the exact factpatterns before them, rather than on more generalized principles.Several different fact patterns may generate several different cases,although from a medical standpoint there is no meaningful differ-ence between the cases. The experience of the New Jersey SupremeCourt is instructive.The lead case was In re Quinlan, decided in 1976.21 Ms. Quinlanwas a twenty-one-year old respirator-dependent hospital patient in apersistent vegetative state. Her premorbid assertions that she wouldnot want to be kept alive in such a condition were found by thecourt to be inconclusive. Working with these facts, the New Jerseycourt held that Ms. Quinlan's father, acting as her guardian, couldassert her constitutional right to have support terminated, if herphysicians determined there was no hope of her ever regaining acognitive state and if the hospital ethics committee concurred inthat determination.26Nine years later, in In re Conroy, the same court was presentedwith a petition by Ms. Conroy's nephew to have her nasogastric tubewithdrawn. 7 His aunt was a nursing home patient, demented to thepoint of minimal interaction and burdened with severe physical dis-abilities. The Conroy court went into great detail, laying out ascheme of three tests that would be applied to the patient'spremorbid statements, if any, regarding her desires for terminationof life support. These tests would help courts determine whetherwithdrawal of support was appropriate in any given case.The first test is purely subjective and would be applied when thepatient's desires are clear, whether through written or oral direc-tives.2" The second or "limited-objective" test would be applied24. For criticism of this court's overly restrictive approach, see Hancock's concur-rence. Id. at 616. For contrast, consider the approach of the Supreme Judicial Courtof Massachusetts in Brophy v. New England Sinai Hosp., 398 Mass. 417, 497 N.E.2d626 (1986). Paul Brophy underwent brain surgery and was left in a persistent vegeta-tive state. In granting his wife's request to have his feeding tube withdrawn, the courtconsidered several nonspecific remarks Brophy made, including a favorite saying."'When your ticket is punched, it is punched.'" Id. at 632 n.22.25. Quinlan, 355 A.2d 647 (1976).26. Id. at 664, 671.27. Conroy, 486 A.2d 1209 (1985).28. Id. at 1229-30.1990]MAINE LAW REVIEWwhen there was "some trustworthy evidence that the patient wouldhave refused the treatment, and the decision-maker is satisfied thatit is clear that the burdens of the patient's continued life with thetreatment outweigh the benefits of that life for him. '29 Under thethird, or "pure-objective" test, treatment might be withdrawn froma patient in Ms. Conroy's condition even if she had never clearlyexpressed her desires, as long as the burdens of treatment "clearlyand markedly outweigh the benefits that the patient derives fromlife . . . [and] the recurring, unavoidable and severe pain of the pa-tient's life with the treatment should be such that the effect of ad-ministering life-sustaining treatment would be inhumane."30 TheConroy decision was an attempt to create workable tests that couldbe applied to later cases. Unfortunately, the court limited applica-tion of these tests to patients in Ms. Conroy's condition. Thus, threeyears later, when presented with three cases that each involved aslightly different factual situation, the New Jersey court handeddown another trio of withdrawal-of-support decisions.The first case involved a mentally competent, terminally ill, venti-lator-dependent woman who was being maintained at home.31 Thesecond concerned an elderly nursing-home patient in a persistentvegetative state.32 The last case dealt with a nonelderly nursing-home patient in a persistent vegetative state.3 3 Although the NewJersey court came to the same decision in each of these cases that ithad in the earlier two, namely that patients do have the right todemand the withdrawal of therapies, each of these patients andtheir families was forced back into the courts to have the rightvindicated.The final problem that arises when withdrawal-of-support ques-tions are answered in a legal setting is that courts may choose to relyon the common law as the basis for a decision to allow withdrawal ofsupport from the patient. Although there are common law groundsfor such a decision, basing the decision on these grounds alone af-fords less protection for patients' rights than does relying on consti-tutional grounds.Most courts that have decided withdrawal-of-support cases havenoted that the individual's right to refuse continued treatment isderived from both common law and constitutional principles of pri-vacy.34 A few, like the Gardner court, have made their decisions on29. Id. at 1232.30. Id.31. In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987).32. In re Peter, 108 N.J. 365, 529 A.2d 419 (1987).33. Jobes, 529 A.2d 434 (1987).34. "It suffices for purposes of this analysis, however, that these two rights func-tion in a complimentary manner, simultaneously affording the incurably ill the rightto determine at what point aggressive therapy should cease." Eichner, 426 N.Y.S.2d517, 541 (1980). See also Brophy, 497 N.E.2d at 633; In re Colyer, 99 Wash. 2d 114,[Vol. 42:193WITHDRAWAL OF TREATMENTthe basis of the common law right alone. 5 The danger in such anapproach is that common law rights "can be abrogated by statute inthe exercise of the State's police powers subject only to due processrequirements .. . Constitutional rights on the other hand cannotbe so abrogated. '" In the context of the withdrawal of medicaltreatment, the real importance of the common law right of personalbodily inviolability is that it is part of the foundation of the individ-ual's constitutional right to have treatment withdrawn.HI. WITHDRAWAL OF LIFE-SUPPORT AND THE FEDERALCONSTITUTIONAL PRIVACY RIGHTA. Derivation of the RightA patient does have a federal constitutional, as well as a commonlaw, right to refuse life-sustaining treatment. There are severalsources for the constitutional right. The Supreme Court has issuedseveral decisions that affirm and help delineate the individual's rightto privacy.3 There are also many federal decisions that identify in-dividuals' rights to privacy and preservation of bodily integrity inthe context of medical and psychiatric care.38 The common law doc-trine mentioned above provides support for the constitutional rightsought to be asserted.3 9 Lastly, the numerous withdrawal-of-supportcases that have been decided by state courts on constitutionalgrounds provide another source for the federal constitutional law.'0The Supreme Court's key privacy decisions begin with Griswold v.Connecticut, in which the Court held that a married couple's rightto privacy, as protected under the penumbras of the first, fourth,fifth, and ninth amendments, included the right to use contracep-tives.,1 This right was extended in Eisenstadt v. Baird to include anunmarried person's right to obtain contraceptives'3 and further ex-tended in Roe v. Wade to include a woman's right to have an abor-tion."3 In Doe v. Bolton, the companion case to Roe, Justice Douglasincluded "the freedom to care for one's health and person, [and]660 P.2d 738, 741-43 (1983); Superintendent v. Belchertown State School v.Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 424-25 (1977); Rasmussen, 741 P.2d at681-83 (1987).35. Gardner, 534 A.2d at 951; see also Conroy, 486 A.2d at 1223 (court recognizedexistence of both common law and constitutional rights but limited its decision to thecommon law foundation); Storar, 420 N.E.2d at 70 (court found the constitutionalbasis "a disputed question" and reached its decision on common law grounds alone).36. Eichner, 426 N.Y.S.2d at 540-41 (citations omitted).37. See text and notes below at p.11-14.38. See text and notes below at p.14-17.39. See text and notes below at p.12-13.40. See text and notes below at p.17-20.41. Griswold v. Connecticut, 381 U.S. 479 (1965).42. Eisenstadt v. Baird, 405 U.S. 438 (1972).43. Roe v. Wade, 410 U.S. 113 (1973).1990]MAINE LAW REVIEWfreedom from bodily restraint or compulsion" among the rightsguaranteed protection under the ninth amendment.4'The rights of privacy identified in these decisions may all be lim-ited by legitimate state interests. Such limitations were acknowl-edged in the decisions themselves'8 and have been highlighted morerecently by such cases as Bowers v. Hardwick.46 Although the lattercase served to focus attention on the limits of the privacy rights, itdid not go so far as to deny the existence of these rights. Rather,this case merely emphasized that privacy rights protected by thefederal constitution must be those that are "fundamental"'47 or"deeply rooted in this Nation's history and tradition.' 4 It is evidentfrom the firmly established common law tradition that an individ-ual's right to self-determination and the derivative right of a patientto refuse treatment are both deeply rooted and fundamental.The roots of the common law doctrine of self-determination arewell-established. In 1891, the Supreme Court stated that "[n]o rightis held more sacred, or is more carefully guarded, by the commonlaw, than the right of every individual to the possession and controlof his own person, free from all restraint or interference of others,unless by clear and unquestionable authority of law.' 4 This rightwas reaffirmed in a number of later cases that dealt with the ques-tion of a patient's right to self-determination in the context of in-formed consent. Holding that a surgeon had no right to perform sur-gery on a patient without her express consent, an Illinois appellatecourt noted that:[Under] a free government at least, the free citizen's first andgreatest right, which underlies all others-the right to the inviola-bility of his person, in other words, the right to himself-is thesubject of universal acquiescence, and this right necessarily forbidsa physician or surgeon, however skilful or eminent ... to violatewithout permission the bodily integrity of his patient .. .44. Doe v. Bolton, 410 U.S. 179, 213 (1973) (Douglas concurring).45. Roe, 410 U.S. at 153-54.46. Bowers v. Hardwick, 478 U.S. 186, 191 (1986) (the right to privacy as pro-tected by the due process clause does not include the right to engage in homosexualsodomy).47. Palko v. Connecticut, 302 U.S. 319, 325 (1937) (those rights which are funda-mental to a "scheme of ordered liberty" are incorporated by the fourteenthamendment).48. Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (Court invalidatedordinance prohibiting occupation of a dwelling by anyone not falling within very nar-row definition of the word "family").49. Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251 (1891) (in civil caseplaintiff may not be compelled to submit to physical examination over herobjections).50. Pratt v. Davis, 118 Ill. App. 161, 166 (1905), aff'd 224 Ill. 300, 79 N.E. 562(1906), quoted in Mohr v. Williams, 95 Minn. 261, 268 (1905) (holding that surgeonwho performs surgery without consent of the patient may be held liable for assault[Vol. 42:193WITHDRAWAL OF TREATMENTThis right to refuse treatment is preserved even if the patient'schoice could be seen by some as irrational in that it might result indeath. " There is no clear reason to distinguish between the refusalof treatment in the first place and the refusal to permit the contin-ued treatment later.A different way to analyze the privacy cases is to consider thecharacteristics of the activities or decisions that are accorded consti-tutional protection. Under one formulation, treatment decisionsmust be both "personal" and "important. 52 It is stating the obviousto say that an individual's decision to have life-sustaining therapieswithdrawn is both personal and important.By definition withdrawal decisions are life or death choices, andthe importance of any choice between existence and nonexistence isundeniable. The personal nature of the choice is equally clear. "It isthe individual making the decision, and no one else, who lives withthe pain and disease. It is the individual making the decision, andno one else, who must undergo or forego the treatment.""3 And lestwe forget the enormity of the personal bodily invasion these pa-tients must endure as their daily maintenance care, consider thedescription of the existence of one patient in a persistent vegetativestate:An automatic electrically driven pump provides a constant slowrate of liquid [through the feeding tube] to the bowel where it isdigested. Mrs. Jobes is incontinent and requires a catheter to con-tinuously irrigate her bladder. She receives routine enemas forbowel evacuation. Mrs. Jobes also has a tracheostomy, which iscovered with a plastic shield to which a flexible tube is attached.Through this tube she receives air from a compressor in order toand battery). See also Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 105 N.E.92 (1914) (surgeon who had patient consent to perform examination under anesthesiahad no right to perform surgery absent patient consent); Petition of Nemser, 51 Misc.2d 616, 273 N.Y.S.2d 624 (1966) (refusing to appoint guardian who would consent toamputation which elderly patient had refused).51. Lane v. Candura, 6 Mass. App. 377, 376 N.E.2d 1232, 1235-36 (1978) (courtfound elderly woman competent to refuse amputation of a gangrenous foot eventhough she might die of the gangrene). In contrast, for example, see United States v.George, 239 F. Supp. 752 (D. Conn. 1965). Mr. George, a Jehovah's Witness, in accordwith his religious beliefs, refused transfusions. The court granted the hospital permis-sion to give transfusions because the "patient may knowingly decline treatment, buthe may not demand mistreatment." Id. at 754. Other cases in which a patient's rightto refuse treatment has been held secondary to the state's interests to demand it willbe discussed later. Cases relating to court-ordered medical treatment of children overthe objections of their parents are beyond the scope of this note and will not bediscussed.52. Andrews v. Ballard, 498 F. Supp. 1038, 1046 (S.D. Tex. 1980) (Texas law re-quiring that acupuncture be performed by only licensed physicians an unconstitu-tional limitation of an individual's right to obtain medical treatment), quoting Careyv. Population Services International, 431 U.S. 678, 684-85 (1977).53. Andrews, 498 F. Supp. at 1047.1990]MAINE LAW REVIEWafford moisture to the tracheotomy. The mist is driven by amechanical air compressor. There is a suction machine adjacent tothe bed available if necessary to remove her saliva. Mrs. Jobes can-not swallow. She is given antibiotics when necessary, as well asmedication intended to prevent seizures. Mrs. Jobes' muscles haveatrophied and her limbs are rigidly contracted. Her extremitiescannot move. Her closely clenched fingers are padded to preventthe skin between them from breaking down.• . . [H]er body has atrophied, contracted and deteriorated; sheis totally incontinent. . . . [S]he requires two surgically-implanteddevices; she must be evacuated and irrigated; she must be handledconstantly and prevented from self-mutilation.54There can be no decision more personal or more important than thedecision to have such bodily invasion finally ended.The notion that an individual has the right to the preservation ofhis bodily integrity underlies several decisions affirming the right asconstitutional in the context of the criminal law. In 1942 the Su-preme Court, in Skinner v. Oklahoma, struck down a statute thatmade sterilization mandatory for any person convicted of three ormore felonies "involving moral turpitude."5 5 The majority character-ized the right of procreation as "one of the basic civil rights of man,"and noted that any person actually sterilized under this law wouldbe "forever deprived of a basic liberty." 56 In later decisions, theCourt has found that bodily intrusions such as a surgical procedureto retrieve a bullet for evidence 57 or forcibly pumping a suspect'sstomach are impermissibly "offensive to human dignity" ' and dam-aging to "the individual's sense of personal privacy and security."59These decisions underscore the Supreme Court's commitment toconstitutional protection of a person's bodily inviolability.Various federal courts have affirmed the same right of personalprivacy in deciding what medical or psychiatric care an individualmay choose to, or not to, receive. In Andrews v. Ballard, a federaldistrict court in Texas was asked to rule on the validity of a statelaw that allowed only licensed physicians to practice acupuncture.6 0The court held that the right to privacy included the right to obtainthe medical treatment of one's choice and found that the law, which54. Jobes, 529 A.2d at 458-59 (Handler concurring).55. Skinner v. Oklahoma, 316 U.S. 535 (1942).56. Id. at 541. But see Buck v. Bell, 274 U.S. 200 (1927) (upholding Virginia stat-ute authorizing sterilization of institutionalized patients found to be afflicted withhereditary forms of insanity or imbecility).57. Winston v. Lee, 470 U.S. 753 (1985) (refusing to order surgery on defendant toretrieve a bullet for evidence in criminal prosecution).58. Rochin v. California, 342 U.q. 165, 174 (1952).59. Winston, 470 U.S. at 762. But see Schmerber v. California, 384 U.S. 757(1966) (doctor may, at police request, take blood sample from suspect despite sus-pect's objection).60. Andrews, 498 F. Supp. 1038 (S.D. Tex. 1980).[Vol. 42:193WITHDRAWAL OF TREATMENTmade it virtually impossible to find an acupuncturist, was an imper-missible restriction of that right.'Several courts have found that the constitutional right to privacygives an individual the right to refuse psychiatric treatment and an-tipsychotic drugs. The central issue in Rogers v. Okin, a class actionsuit brought by voluntary and involuntary patients of mental hospi-tals against hospital staff members, was: when can hospital staff for-cibly administer antipsychotic drugs?62 The court of appeals for theFirst Circuit founded its analysis on the premise that "a person hasa constitutionally protected interest in being left free by the state todecide for himself whether to submit to the serious and potentiallyharmful medical treatment that is represented by the administra-tion of antipsychotic drugs."6The Fourth Circuit court of appeals reached the same conclusionin United States v. Charters,"' holding that a mentally ill defend-ant, incompetent to stand trial, had a constitutionally protectedright to refuse antipsychotic medication. Although there were legiti-mate countervailiAg state interests, the court found them insuffi-cient to "permit such a draconian invasion of the individual's free-dom and the risk of permanent physical injury."6 5The only withdrawal-of-support case, before Cruzan, to reach thefederal level is Gray v. Romeo.s6 The husband of a patient in a per-sistent vegetative state sought a declaratory judgment authorizinghim to discontinue his wife's feeding tube and other life-sustainingmeasures.67 After reviewing privacy cases, the Rhode Island districtcourt held that a patient did have the right to make decisions abouther medical treatment, and that "right, whether described as theprinciple of personal autonomy, the right of self-determination, orthe right of privacy, is properly grounded in the liberties protectedby the fourteenth amendment's due process clause. This right is alsogrounded in the notion of an individual's dignity and interest in61. Id. at 1056-57.62. Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980).63. Id. at 653.64. 829 F.2d 479 (4th Cir. 1987). "The right to refuse medical treatment has beenspecifically recognized as a subject of constitutional protection." Id. at 491. See alsoGorman v. University of Rhode Island, 646 F. Supp. 799 (D. PI. 1986), aff'd andrev'd in part, 837 F.2d 7 (1st Cir. 1988) (noting that disciplinary board's requiringstudent to get psychiatric counseling implicates federal constitutionally protected pri-vacy interest); Bee v. Graves, 744 F.2d 1387 (10th Cir. 1984) (mentally ill pretrialdetainee may not be forced to take antipsychotic medications without his consent);Davis v. Hubbard, 506 F. Supp. 915 (N.D. Ohio 1980) (patients in state mental hospi-tal have liberty interest protected by fourteenth amendment which prohibits theirbeing medicated without their consent unless they are a danger to themselves orothers).65. Charters, 829 F.2d at 494.66. 697 F. Supp. 580 (D. I. 1988).67. Id. at 583.1990]MAINE LAW REVIEWbodily integrity." 8State court decisions that affirm on constitutional grounds a pa-tient's right to refuse or have withdrawn various life-saving or life-sustaining therapies are the final source of the federal constitutionalright supporting that proposition. In In re Brooks the Illinois Su-preme Court was asked to consider the rights of a patient who wasrefusing life-saving blood transfusions. 9 The patient was a Jeho-vah's Witness who had been admitted to the hospital with a bleed-ing peptic ulcer and had repeatedly told her physician that her reli-gious convictions prevented her receiving any blood transfusions.Nevertheless, when her condition worsened, her doctor petitionedthe court for an order allowing transfusions. In overruling the lowercourt's entry of the order, the Illinois Supreme Court held that forc-ing medical treatment on a patient whose religious beliefs forbadeher receiving it was an impermissible violation of her first amend-ment right of freedom of religion.7 0Many of the state courts faced with a termination of supportquestion have relied on the individual's federal constitutional rightof privacy as the basis for their holding that a patient does have theright to demand that such treatment be withdrawn. This was theapproach the New Jersey Supreme Court took in Quinlan.7 1 Notingthe Griswold-Eisenstadt-Roe series of privacy decisions, the courtobserved that the scope of a right of privacy broad enough to in-clude a woman's decision whether to have an abortion must bebroad enough to include a patient's decision to refuse medicaltherapy.72In determining that an incompetent man might be spared furtherchemotherapy treatments, the Supreme Judicial Court of Massachu-setts declared that "[t]he constitutional right to privacy, as we con-ceive it, is an expression of the sanctity of individual free choice and68. Id. at 585.69. 32 Ill. 2d 361, 205 N.E.2d 435 (1965).70. Id. at 442. "Even though we may consider appellant's beliefs unwise, foolish orridiculous, in the absence of an overriding danger to society we may not permit inter-ference therewith in the form of a conservatorship established in the waning hours ofher life for the sole purpose of compelling her to accept medical treatment forbiddenby her religious principles, and previously refused by her with full knowledge of theprobable consequences. In the final analysis, what has happened here involves a judi-cial attempt to decide what course of action is best for a particular individual, not-withstanding that individual's contrary views based upon religious convictions. Suchaction cannot be constitutionally countenanced." Id. See also In re Osborne, 294 A.2d372 (D.C. 1972) (refusing to order life-saving transfusions for Jehovah's Witness); Inre Quackenbush, 156 N.J. Super. 282, 383 A.2d 785 (1978) (refusing to appoint guard-ian who could consent to amputation of patient's gangrenous legs after patient re-fused to consent to procedure).71. In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976).72. Id. at 663.[Vol. 42:193WITHDRAWAL OF TREATMENTself-determination as fundamental constituents of life."73 Severalyears later a California appellate court was asked to determine if acompetent patient should be allowed to order her disconnectionfrom a ventilator.74 In making its decision, the court considered thestate and federal constitutional guarantees of privacy and the exam-ples of other state courts that had relied on federal constitutionalprivacy grounds in reaching similar decisions.75In 1987, the Supreme Court of Arizona, deciding its first with-drawal-of-support case, considered the United States SupremeCourt's development of the federal privacy right, noting that it pro-tected a variety of matters, including the right to have an abortion,use contraceptives, and rear children according to one's beliefs."The Arizona court acknowledged that this constitutionally guaran-teed privacy must be limited to include only those matters that are"'fundamental' or 'implicit in the concept of ordered liberty.' , "Lastly, the court pointed to the many state court decisions in similarcases that had relied on federal constitutional grounds.7 8 With thisframework for its analysis, the court held that "[t]he right to refusemedical treatment is a personal right sufficiently 'fundamental' or'implicit in the concept of ordered liberty' to fall within the consti-tutionally protected zone of privacy contemplated by the SupremeCourt."79B. Limits of the Federal Privacy RightAlthough the right to control one's medical treatment has a firmconstitutional foundation, this right is not absolute, but may be lim-ited by an overriding state interest. Generally, the four counter-vailing interests that must be considered are: 1) the preservation oflife, 2) the prohibition of suicide, 3) the protection of innocent thirdparties, and 4) the preservation of the ethical integrity of physiciansand health-care institutions.80The first interest, that of preserving life, is generally considered tobe the most important.81 Courts have given considerable deferenceto a patient's right to self-determination, whether the patient wascompetent and able to make his or her wishes known or incompetentand speaking through a surrogate. In the former situation, absent73. Saikewicz, 370 N.E.2d at 426 (1977).74. Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297 (1986).75. Id. at 301-303.76. Rasmussen, 741 P.2d at 681.77. Id.78. Id. at 682.79. Id.80. Saikewicz, 370 N.E.2d at 425.81. Id. See also In re Colyer, 99 Wash. 2d 114, 660 P.2d 738, 743 (1983) (,ith.drawal of support from patient in persistent vegetative state); Conro.v, 486 A.2d at1223; Rasmussen, 741 P.2d at 683.1990]MAINE LAW REVIEWother state interests, there is no reason to allow a patient's rights tobe overborne by the state, particularly where "the patient's situation[is] wretched and the continuation of his life temporary and totallyartificial. 8 2 As the Supreme Judicial Court of Massachusettspointed out, under such circumstances the value of life would bedegraded not by allowing a patient to refuse treatment and die, butby the state's denying the patient freedom of choice and self-determination.3When the patient is incompetent, the state's interest in prolong-ing the existence of a hopelessly ill patient is minimal at best. Thiswas the situation confronting the Quinlan court, and it concludedthat "the State's interest contra weakens and the individual's rightto privacy grows as the degree of bodily invasion increases and theprognosis dims. Ultimately there comes a point at which the individ-ual's rights overcome the State interest."'84 Other courts have agreed,noting that the state's interests in preservation of life must beweighed differently if the issue is not whether a life can be preservedbut for how long and at what cost to the patient.83In Brophy v. New England Sinai Hospital, Inc., the Supreme Ju-dicial Court of Massachusetts observed, "[W]e must recognize thatthe State's interest in life encompasses a broader interest than merecorporeal existence."86 This view is consistent with those expressedby both the medical community and various ethics commentators.As one physician observed, "Recovery should not be defined simplyas the ability to remain alive; it should mean life without intolerablesuffering or in a totally vegetative state."8The state's interest in preventing suicide is not a significant factorin termination-of-treatment cases; the Saikewicz court relegated itto a footnote.8 Suicide is an intentional act of self-destruction, un-dertaken by an individual with the intent to die. Allowing a patientto order that life-sustaining treatment be withdrawn may just assurely result in his or her death, but that death will be the result ofnatural causes, from whatever happens to be the underlying disease82. Satz v. Perlmutter, 362 S.2d 160, 162 (Fla. Dist. Ct. App. 1978) (Perlmutter1), aff'd 379 S.2d 359 (Fla. 1980). See also Bartling v. Superior Court, 163 Cal. App,3d 196, 209 Cal. Rptr. 220 (1984) (asserting competent patient's right to demand cos-sation of life-sustaining treatment); Conroy, 486 A.2d at 1223 ("In cases that do notinvolve the protection of the actual or potential life of someone other than the deci-sionmaker, the state's indirect and abstract interest in preserving the life of the com-petent patient generally gives way to the patient's much stronger personal interest indirecting the course of his own life.").83. Saikewicz, 370 N.E.2d at 426.84. Quinlan, 355 A.2d at 664.85. Saikewicz, 370 N.E.2d at 425-26.86. Brophy, 497 N.E.2d at 635.87. Howard P. Lewis, M.D., Machine Medicine and Its Relation to the FatallyIll, 206 J. Amer. Med. Assoc. 387, 388 (1968).88. Saikewicz, 370 N.E.2d at 426 n.11.[Vol. 42:193WITHDRAWAL OF TREATMENTprocess.8 9 "Withdrawing treatment. . . is not the equivalent of sui-cide; on the contrary, it should be considered as an acceptance ofthe human condition."90 Furthermore, the provision in many of thevarious states' Living Will Acts that the withdrawal of support isnot suicide makes the argument that it is suicide ring hollow.0 1The third state interest to be considered is the need to protectinnocent third parties. In the context of refusal-of-treatment cases,the third parties involved are generally minor children, emotionallyand financially dependent on the patient who wishes to refuse treat-ment. Frequently cited as a leading example of the third party issueis Application of President and Directors of Georgetown College,Inc.92 In that case, the court compelled the patient to receive bloodtransfusions despite her religious convictions because the state's in-terest in preventing her abandoning her seven-month-old infant wasof greater importance. Although court after court refers to this par-ticular state interest, presumably for the sake of completeness, ithas not been a significant factor in the termination-of-treatmentcases. This may be due in part to the fact that many of the patientsinvolved are elderly and no longer have any minor dependents.03 Onthe other hand, in the case of a young person with small children,but now in a persistent vegetative state or profound coma, the emo-tional abandonment of the children, albeit involuntary, has alreadyoccurred and cannot be reversed. Furthermore, the parent's pro-longed existence will constitute more of a financial drain than ameans of economic support.Finally, the state has an interest in maintaining the ethical integ-89. Id. See also Brophy, 497 N.E.2d at 638; Bartling, 209 Cal. Rptr. at 226; Con-roy, 486 A.2d at 1224. For a more detailed discussion of this point, see Norman L.Cantor, A Patient's Decision to Decline Life Saving Medical Treatment: Bodily In-tegrity Versus the Preservation of Life, 26 Rutgers L. Rev. 228, 254-58 (1973).90. John J. Paris and Richard A. McCormick, The Catholic Tradition on the Useof Nutrition and Fluids, America 356, 358 (May 2, 1987), quoting from the Vatican's"Declaration on Euthanasia".91. See, for example, Cal. Health & Safety Code, § 7192(a) (West Supp. 1989); U1LAnn. Stat. ch. 1101/2, 709(a) (Smith-Hurd Supp. 1989); 22 Me. Rev. Stat. Ann. §2929(1) (Supp. 1988-1989); N.H. Rev. Stat. Ann. § 137-H:10 (Equity Supp. 1988).Most living will statutes do include some provision stating that termination of medi-cal therapy in accord with a living will is not an act of suicide. See Comment, Maine'sLiving Will Act and the Termination of Life-Sustaining Medical Procedures, 39 Me.L. Rev. 83, 98 n.67 (1987).92. 331 F.2d 1000 (D.C. Cir. 1964) (Jehovah's Witness, mother of seven.month-oldinfant, admitted to emergency room after massive hemorrhage from an ulcer, refusedblood transfusions). See also John F. Kennedy Memorial Hosp. v. Heston, 58 N.J.576, 279 A.2d 670 (1971) (young pregnant woman compelled to receive blood transfu-sions). The Conroy court subsequently overruled the portion of the Kennedy decisionthat implied that refusal of treatment was tantamount to suicide. Conroy, 486 A.2d at1224.93. See, for example, Perlmutter 1, 362 S.2d 160 (1978); Bartling, 209 Cal. Rptr.220 (1984); Rasmussen, 741 P.2d 674 (1987).1990]MAINE LAW REVIEWrity of the health care professions. In United States v. George, onefederal district court found that the professional ethics of the treat-ing physicians outweighed the patient's rights.9 4 Mr. George, a Jeho-vah's Witness, was admitted to a VA hospital because of hemor-rhage from a gastric ulcer; in accord with the tenets of his faith herefused blood transfusions. In ordering that the necessary transfu-sions be given, the court admitted that the patient's religious beliefsmust be considered, but reasoned that since he had voluntarilypresented himself to the doctors for treatment, their "conscienceand professional oath must also be respected." 95 Generally, though,the medical community has recognized its role in easing a patientthrough an inevitable death as a duty as real as trying to cure his orher illness. To prolong the life of a terminally ill patient by artificialmeasures, " 'to drag it out for a few more agonizing days or weeks. . . is the science without the humanity of medicine.' ,,c'The Hastings Center, a research group devoted to the interrelatedfields of medicine, ethics, and law recently published an extensivemanual, Guidelines on the Termination of Life-Sustaining Treat-ment and the Care of the Dying.97 Its purpose is to provide a frame-work for health-care professionals, and anyone else involved in with-drawal-of-support cases, to think about and discuss the relevantissues, as well as to help involved parties actually reach their deci-sions.9 8 The underlying premise of the Guidelines is, as the title im-plies, that the withdrawal of treatment is professionally ethical, as-suming that the decision has been reached in an appropriatemanner.9 9A hospital's ethics presents a somewhat different problem. In the94. United States v. George, 239 F. Supp. 752 (D. Conn. 1965).95. Id. at 754.96. J. Englebert Dunphy, M.D., in 1976 address to the Massachusetts MedicalSociety, quoted in Paris and McCormick, America at 360 (May 2, 1987). In 1986, theCouncil on Ethical and Judicial Affairs of the American Medical Association issued astatement on "Withholding or Withdrawing Life Prolonging Medical Treatment"which noted in part:The social commitment of the physician is to sustain life and relieve suf-fering. Where the performance of one duty conflicts with the other, thechoice of the patient, or his family or legal representative if the patient isincompetent to act in his own behalf, should prevail.• . . At all times, the dignity of the patient should be maintained.(quoted in Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297, 303-304 (1986)).97. Guidelines on the Termination of Life-Sustaining Treatment and the Care ofthe Dying, The Hastings Center, 1987 ("Guidelines").98. Id. at iii.99. The Introduction to the Guidelines provides a good general discussion of theinterplay of the various interests involved, the need for clear and open discussionsabout a patient's options, needs, and wishes, and the use of the Guidelines in ad-dressing these issues. The entire manual, including the extensive bibliography, wouldbe very useful to anyone frequently involved with withdrawal of treatment cases.[Vol. 42:193WITHDRAWAL OF TREATMENTBrophy case, New England Sinai Hospital argued that it should notbe forced to controvert its ethical principles by withholding hydra-tion and nutrition from Mr. Brophy. 00 The court agreed, findingthat "[a] patient's right to refuse medical treatment does not war-rant such an unnecessary intrusion upon the hospital's ethical integ-rity in this case."10' Accordingly, the court ordered that Mr. Brophybe allowed to transfer to another facility (or to his home) where hecould carry out his wishes." 2 In Bartling v. Superintendent, thecourt reached the opposite conclusion, holding that "if the right ofthe patient to self-determination as to his own medical treatment isto have any meaning at all, it must be paramount to the interests ofthe patient's hospital and doctors.'0 3The Bartling example puts the appropriate emphasis on a pa-tient's interests as outweighing those of the institution. After all,"[h]ospitals are corporations that have no natural personhood, andhence are incapable of having either 'moral' or 'ethical objections' toactions. And hospitals don't practice medicine, physicians do. ' 4 Itis a meaningless exercise to weigh a patient's rights against the ethi-cal constraints of an entity incapable of having ethics.C. Who May Assert the Right to Withdraw Treatment?One difficulty that arises in many of the termination-of-treatmentcases is deciding who may exercise the patient's right of privacy anddemand that life-sustaining measures be withdrawn. If the patient iscompetent, there is no difficulty, because the patient may assert hisor her rights individually. 05 A patient's decision to have supportwithdrawn, even though that decision will result in death, does notconstitute proof of incompetency; the argument that no competentperson would choose to die is of little consequence. 00 Even if thepatient is not competent, courts have found that a surrogate actingon the patient's behalf may assert his or her rights. 07 Were an in-competent patient to be accorded the right of self-determinationwithout any means to exercise it, the right would clearly be "anempty one, reduced to a meaningless 'form of words' illusory anddevoid of substance." 08 An appropriate surrogate must be allowedto act for the patient to prevent the incompetent patient's rights100. Brophy, 497 N.E.2d at 639.101. Id.102. Id. at 639-40.103. Bartling, 209 Cal. Rptr. at 225. See also Jobes, 529 A.2d at 450.104. George J. Annas, Transferring the Ethical Hot Potato, 17 Hastings CenterRpt. 20, 21 (Feb. 1987).105. See, for example, Perlmutter 1, 362 S.2d 160 (1978); Bartling, 209 Cal. Rptr.220 (1984); Bouvia, 225 Cal. Rptr. 297 (1986); Farrell, 529 A.2d 404 (1987).106. Lane, 376 N.E.2d at 1235-36 (1978).107. See, for example, Quinlan, 355 A.2d at 664; Conroy, 486 A.2d at 1229.108. Eichner, 426 N.Y.S.2d at 544.1990]MAINE LAW REVIEWfrom being stripped away.'0 9Although courts have generally agreed that surrogates may makedecisions whether to terminate life-support, they have differed inthe protocols used for the decision-making process. The first stepnecessarily must be the selection of an appropriate surrogate. Gener-ally, this will be a family member, or possibly a very close friend,who knows the patient well enough to be able to determine what thepatient would want if capable of making his or her feelingsknown.110 In some instances, a person may have already designatedsomeone to act as a surrogate, should the need arise, through theexecution of a proxy directive, such as a durable power of attor-ney."" Absent family or friends able or willing to act as a surrogate,and absent any other directive by the patient, the court may ap-point a guardian or conservator to assume the role.1 12Following appointment the issue becomes how the surrogate willarrive at a decision. If the patient had previously made his or herwishes clear, the surrogate's task is easy; the surrogate need only actin accord with the patient's expressed intent.113 If, however, the pa-tient had never made clear what his or her choice would be, the sur-rogate will be forced to use personal knowledge of the patient todetermine what the patient would have wanted. It is at this juncturethat courts have introduced a number of different methods of analy-sis meant to clarify the decision. This has resulted in approachessuch as limited-objective or pure objective tests, or substituted orbest-interests judgments-terms that are frequently confusing andinconsistently applied from court to court.There are two common elements to most of the courts' ap-proaches. The first is that the surrogate must try to determine whatthe patient's desires would be "if [she] were herself miraculously lu-cid for an interval."' 4 The second is that no one is to make a judg-ment as to the quality of the patient's life; the surrogate must act inaccord with what the patient would have felt about the quality ofhis or her life.11 5 The distinction is more than semantic. It is essen-109. Norman L. Cantor, Quinlan, Privacy, and the Handling of Incompetent Dy-ing Patients, 30 Rutgers L. Rev. 243, 252 (1977).110. See, for example, Quinlan, 355 A.2d at 664; Guidelines at 24.111. See, for example, In re Peter, 108 N.J. 365, 529 A.2d 419 (1987). See alsoGuidelines at 78-84.112. See In re Torres, 357 N.W.2d 332 (Minn. 1984) (conservator as surrogate);Rasmussem, 741 P.2d 674 (1987) (guardian as surrogate).113. See, for example, Gardner, 534 A.2d at 956; Eichner, 420 N.E.2d at 72.114. Quinlan, 355 A.2d at 663.115.The duty of the State to preserve life must encompass a recognition of anindividual's right to avoid circumstances in which the individual himselfwould feel that efforts to sustain life demean or degrade his humanity. ...It is antithetical to our scheme of ordered liberty and to our respect for theautonomy of the individual for the State to make decisions regarding the[Vol. 42:193WITHDRAWAL OF TREATMENTtial in order to keep the focus on the patient and his or her beliefsabout his or her human dignity. As long as these two elements re-main foremost in the mind of the surrogate, it is irrelevant whatname is given to the test or approach used in arriving at thedecision.The details that the surrogate may consider are wide-ranging andinclude such things as the patient's "philosophical, religious andmoral views, life goals, values about the purpose of life and the wayit should be lived, and attitudes toward sickness, medical proce-dures, suffering and death."116 An additional consideration is the pa-tient's feelings about the impact on his family of either continuingor terminating treatment.111 This appears to set a monumental taskfor surrogates, and it is important that they be able to work withothers (the patient's family, friends, and physicians and other in-volved health-care professionals, and clergy) in making a decision. "A final complication is introduced if the patient was never compe-tent. Two such cases, Superintendent of Belchertown State Schoolv. Saikewicz1 9 and In re Storar120 demonstrate how courtspresented with similar problems can arrive at vastly differentconclusions.Joseph Saikewicz was a profoundly retarded, sixty-seven-year-oldman who had leukemia.1 21 Given his age, his general state of health,and the particular type of leukemia, doctors felt that chemotherapywould offer only a thirty to forty percent chance of remission, whichwould last for an estimated two to thirteen months, and no chanceof cure. The chemotherapy would result in various side effects, in-cluding pain, bladder irritation, and infections. After a thoughtfuldiscussion of a competent patient's rights to refuse therapy, thecourt questioned whether the state was always bound, regardless ofthe circumstances, to order medical treatment for an incompetentpatient under the doctrine of parens patriae. 22 The court concludedthat:It does not advance the interest of the State or the ward to treatthe ward as a person of lesser status or dignity than others. Toprotect the incompetent person within its power, the State mustrecognize the dignity and worth of such a person and afford to thatindividual's quality of life. It is for the patient to decide such issues.Brophy, 497 N.E.2d at 635 (citation omitted).116. Jobes, 529 A.2d at 445, quoting Newman, Treatment Refusals for the Criti-cally Ill Proposed Rules for the Family, the Physician and the State, IIIN.Y.L.Sch. Human Rights Annual 45-46 (1985).117. Jobes, 529 A.2d at 444 n.10.118. Guidelines at 23.119. 370 N.E.2d 417 (1977).120. 420 N.E.2d 64 (1981).121. Saikewicz, 370 N.E.2d at 420.122. Id. at 427-28.1990]MAINE LAW REVIEWperson the same panoply of rights and choices it recognizes in com-petent persons."'Given the minor benefits of the proposed chemotherapy and thesignificant discomfort of the side effects, coupled with Mr.Saikewicz's inability to understand why he was in frequent pain orbeing sedated and restrained for treatment, the court decided that ifhe could have made the decision himself, he would have rejected thetreatment. Accordingly, the court ordered that treatment bewithheld.124John Storar was a profoundly retarded man with terminal cancerof the bladder. 1 25 As the cancer progressed, he bled increasinglyheavily from his bladder, necessitating regular blood transfusions toprevent his exsanguination. His mother tried to block further trans-fusions because they, and the continued bleeding and pain, confusedand frightened Mr. Storar. In view of his prognosis, she felt the bur-dens of treatment were excessive.The Court of Appeals of New York began its analysis by findingthat a parent may not deprive a child of life-saving therapies, nomatter the reason. 2 ' It then reasoned that the transfusions wouldprevent Mr. Storar's death from bleeding, if not his death from thecancer, so they were life-saving and had to be given.127 The analysiswas inadequate from both legal and medical points of view. From alegal standpoint, it ignored precisely the issue the Saikewicz courtwas at such pains to highlight: that it is degrading to the humanityof the incompetent patient automatically to compel treatment that acompetent patient might refuse. From a medical standpoint, it isoverly simplistic to draw a bright line between death from hemor-rhage or from the cancer which causes the hemorrhage.The implications of the Saikewicz and Storar decisions reach be-yond the treatment of the never-competent. Any decisionmaker try-ing to choose whether or not to allow withdrawal of treatment froma presently incompetent patient is faced with similar problems. Ab-sent a previous clear directive from the patient, the choice will ofnecessity be the result of "the imaginative effort of the deci-sionmaker to construct what the patient would want, given what thesurrogate knows."' 2 8 Naturally there will be some cases that require123. Id. at 428.124. Id. at 435.125. Storar, 420 N.E.2d at 68-69.126. Id. at 73.127. Id. The court determined that the transfusions "would not cure the cancer,but they could eliminate the risk of death from another treatable cause." Withoutthem, Mr. Saikewicz's "mental and physical abilities would not be maintained at theusual level. With the transfusions ... he was essentially the same as he was beforeexcept of course he had a fatal illness which would ultimately claim his life." Id.128. Martha Minow, Beyond State Intervention in the Family: For Baby JaneDoe, 18 U. Mich. J. L. Ref. 933, 973 (1985).[Vol. 42:193WITHDRAWAL OF TREATMENTless imagination than others, but the uncertainty will always be pre-sent. That uncertainty should not, however, cause us simply toabandon the inquiry, as did the Storar court, but should be a potentreminder to undertake the task with great care and sensitivity.IV. THE IMPORTANCE OF A CONSTITUTIONALLY-BASED RIGHT TODEMAND TERMINATION OF TREATMENTThe costs to the patients and their families of repeated tripsthrough the courts are very real. A dramatic, and tragic, manifesta-tion of the inadequacy of the judicial treatment of withdrawal-of-support cases is the long list of patients, some competent, some not,who have died while their cases wound through the judicial sys-tem.12 9 Arguably the greatest sufferers are those like Abe Perlmut-ter, who lay shackled to a ventilator, daily aware of an existence hefound intolerable, but forced to walt upon the vagaries of the legalsystem. 3 ' The conscious are not the only ones who suffer. Thehuman cost to the unconscious, the comatose, or persistently vegeta-tive patients, the loss of their dignity, is not to be ignored.Even those courts that have noted the need for expedience havebeen unable to avoid the inherent constraints of legal process. TheDelaware Supreme Court, in Severns v. Wilmington MedicalCenter, Inc., while professing a sensitivity to the need for haste inorder to minimize unnecessary grief for the patient or her family,declared that a stipulation of facts was inadequate for the kind ofcase under discussion and provided half a page of factual questionsfor the chancery court to explore in an evidentiary hearing."'The spectre of a lengthy and expensive legal battle may itself beenough to cause some patients or their families to decide not to pur-sue their desire to have treatment withdrawn.11 2 Obviously those pa-tients' rights have been critically diminished by the system suppos-edly trying to protect them. It is inappropriate that fears of legalcosts or complexities should be allowed to play a role in a medicaldecision, especially one of such profound personal consequence.A variation on this particular problem is the possibility that aphysician and family may too hastily decide not to institute treat-ment of an incompetent patient on the theory that that decision willnot result in a judicial proceeding, whereas trying to discontinue129. See, for example, Rasmussen, 741 P.2d 674 (1987); Farrell, 529 A.2d 404(1987); Conroy, 486 A.2d 1209 (1985); Bartling, 209 Cal. Rptr. 220 (1984); Storar, 420N.E.2d 64 (1981) (both patients whose cases were consolidated in this appeal diedduring the proceedings); In re Spring, 380 Mass. 629, 405 N.E.2d 115 (1980);Saikewicz, 470 N.E.2d 417 (1977).130. Perlmutter 1, 362 S.2d 160 (1978).131. 421 A.2d 1334, 1349-50 (Del. 1980).132. See, for example, Farrell, 529 A.2d at 415 (1987).1990]MAINE LAW REVIEWtreatment after unsuccessful medical treatment would. 133 The rights,not to mention the medical care, of any patient for whom such adecision is made will have been profoundly compromised.Another problem with court-generated answers to the withdrawalof support cases arises from the unsuitability of a legal frameworkfor solving medical questions. Much of this unsuitability derivesfrom fundamental philosophical differences between legal and medi-cal processes. The legal process is inherently adversarial. The medi-cal process, by contrast, is a process through which physician andpatient work together to allow the patient to make the decisions thepatient feels are best; it is not an adversarial process.The decision of a patient or a patient's family to discontinuetreatment is a medical decision to be arrived at like any other,through a process of informed consent.134 The decision must be theresult of full and open communication between the doctor and thepatient or family, with discussion of the consequences and the alter-natives. In addition, the physician is obliged to be certain that "thepatient . . also understand[s] clearly his or her right to makechoices about the type of care to be received-a right many patientsare not aware of. This is the cornerstone of all decision making andis the basis on which informed consent rests.'13That these are medical decisions is not a point entirely ignored bythe judiciary. The Jobes court noted that "[c]ourts are not theproper place to resolve the agonizing personal problems that under-lie these cases. Our legal system cannot replace the more intimatestruggle that must be borne by the patient, those caring for the pa-tient, and those who care about the patient."' 3 Many courts havepointed out that these highly emotionally charged, enormously com-plex questions, which draw in medical, ethical, religious, economic,and psychological issues, are not questions suited to the courts' fact-specific, adversarial structure.137 At least one federal circuit judgehas suggested that withdrawal-of-support claims be dismissed forlack of a justiciable controversy. 38 Another possible solution, sug-gested by several state courts, is that legislatures should act to de-termine when support may be withdrawn.138133. See, for example, Conroy, 486 A.2d at 1234; Joanne Lynn & James Childress,Must Patients Always Be Given Food and Water?, 13 Hastings Center Rpt. 17, 19-20(Oct., 1983).134. Sidney H. Wanzer, M.D., et al., The Physician's Responsibility TowardHopelessly Ill Patients, 310 New England J. Med. 955, 957 (1984).135. Id. at 957.136. Jobes, 529 A.2d at 451.137. See, for example, Petition of Nemser, 51 Misc. 2d 616, 273 N.Y.S.2d 624,631-32 (1966).138. Application of President & Directors of Georgetown College, Inc., 331 F.2d1010, 1015-18 (D.C. Cir. 1964) (Burger dissenting).139. See, for example, Perlmutter II, 379 S.2d at 360; Jobes, 529 A.2d at 461.[Vol. 42:193WITHDRAWAL OF TREATMENTUnfortunately, a legislative response to these issues could be nobetter than a judicial response. Legislative approaches to date haveconsisted of the passage of various Living Will statutes. These areinadequate in many cases because well-intentioned but overly re-strictive legislatures have included limiting provisions. 140 Further-more, they are useful only for those people with the necessary fore-sight, education, and financial resources to make one. 1 Legislativeaction necessarily suffers from the same major failing that afflictsjudicial action: both are nonmedical interventions into personalmedical decisions.Some judges have noted that they are struggling with these with-drawal-of-support questions not because they want to, but becausethe parties involved have come to the court demanding an answer."4This may be true, but judicial willingness to hear some of thesecases has resulted in the apprehension of some physicians and hos-pital administrators that they will face civil and possible criminalliability if they fail to obtain a court order before removing a pa-tient's life-sustaining therapies.143 Such fears were aggravated by aCalifornia case in which two physicians who, at the request of a fam-ily relying on the patient's premorbid wishes, had disconnected acomatose patient from a ventilator. The physicians were charged140. For example, several Living Will statutes exclude nutrition and hydrationfrom the life-sustaining procedures which may be terminated in accord with a validLiving Will. See, for example Ariz. Rev. Stat. Ann. § 36-3201(4) (1986); Me. Rev. Stat.Ann. tit. 22, § 2921(4) (Supp. 1989); Mo. Ann. Stat. § 459.010(3) (Vernon Supp. 1989).Many statutes make Living Will directives applicable only if a patient has a termi-nal condition likely to cause death within a short time with or without life.sustainingprocedures. See, for example, Del. Code Ann. tit. 16, § 2501(e) (1983); Mo. Ann. Stat.§ 459.010(c) (Vernon Supp. 1989); Wash. Rev. Code Ann. § 70.122.020(7) (Supp.1989). This effectively limits the use of Living Wills only to patients truly in extremisand excludes the patients who are in irreversible coma, but who may live for a fewyears with mechanical ventilation and tube feedings.Even the "terminal condition" restriction is problematic, because it could be de-fined to exclude a persistent vegetative state. Given some form of artificially suppliednutrition and hydration and good nursing care, these patients may live for years andthus do not fit a colloquial meaning of "terminal." For a discussion of the terms "%ithor without life-sustaining procedures" and "terminal condition" in the Maine LivingWill Act, see Comment, supra note 91 at 95-97.141. Bartling, 209 Cal. Rptr. at 224 n.5; Barber v. Superior Court, 147 Cal. App.3d 1006, 195 Cal. Rptr. 484, 489 (1983). The Barber court noted that the proceduresto be followed in executing such a document under the California Natural Death Actwere "so cumbersome that it is unlikely that any but a small number of highly edu-cated and motivated patients will be able to effectuate their desires." Barber, 195 Cal.Rptr. at 489.142. Jobes, 529 A.2d at 461 (Handler concurring); Perimutter II, 379 S.2d at 360-61.143. See Wanzer, 310 New England J. Med. at 956 (1984); Paul A. Armstrong &B.D. Colen, From Quinlan to Jobes: The Courts and the PVS Patient, 18 HastingsCenter Rpt. 37, 38-39 (Feb./March, 1988).1990]MAINE LAW REVIEWwith homicide., 4 This is the only such case in American legal his-tory, and the charges were dismissed by a California appeals court.Still, it has left an uneasiness in the minds of many physicians whoare confronted with these cases.The spectre of ruinous malpractice suits has also influenced themedical decisions of some otherwise responsible physicians. One in-tensive-care physician admitted that he would not remove a ventila-tor from a patient, regardless of the circumstances, without a courtorder[because of] my own sense of legal responsibility and legal culpabil-ity, and the impact it could have on me personally, the hospital,and my family.. . . I may be held personally liable and my familywould therefore not only be affected indirectly, but directly, be-cause my assets could become an issue .... I see the worst possi-ble case scenario in everything that I do.' 4Ideally, the uncertainty of legal trends or outcomes should not de-ter a physician from rendering truly compassionate care or workingwith a patient to make the choices the patient feels are in his or herbest interests. In a blunt reminder of this principle, the Perlmuttercourt observed:It is all very convenient to insist on continuing Mr. Perlmutter'slife so that there can be no question of foul play, no resulting civilliability and no possible trespass on medical ethics. However, it isquite another matter to do so at the patient's sole expense andagainst his competent will, thus inflicting never ending physicaltorture on his body until the inevitable, but artificially suspended,moment of death.1 46A clear statement by the Supreme Court of the patient's federalconstitutional right to have life-sustaining treatments terminatedwould clarify the doctor's legal position and alleviate the disruptionof care caused by current anxieties. First, affording constitutionalprotection to the patient's request would render the issue of thephysician's criminal liability moot. If the right that the patient seeksto assert is constitutionally protected, the third party assisting thepatient in exercising that right cannot be held criminally liable forso doing.14 7Furthermore, explicit declaration of patients' rights would put theissue of civil liability back in the appropriate perspective. Even atpresent, a court order authorizing the termination of treatment doesnot immunize a doctor from all risk of liability, because the doctor144. Barber, 195 Cal. Rptr. 484 (1983).145. Armstrong & Cohen, 18 Hastings Center Rpt. at 39.146. Perlmutter 1, 362 S.2d at 164.147. Griswold, 381 U.S. 479 (1965). See also John B. Nesbitt, Terminating LifeSupport for Mentally Retarded, Critically Ill Patients: The Prosecutor's Perspec-tive, 3 J. Legal Med. 245, 260 (1982).[Vol. 42:193WITHDRAWAL OF TREATMENTmay still be charged with malpractice if his or her care is below ac-ceptable standards.1 4 8 Conversely, as several courts have pointedout, the lack of a court order is not an automatic trigger for civilliability.1 4 9 If the Supreme Court makes it clear that patients dohave a constitutional right to refuse continued life-sustaining thera-pies, physicians should feel comfortable that assisting patients inthe termination of life-sustaining therapies will not land them incourt unless they are negligent. The focus would appropriately be onthe patients' needs and wishes, rather than on legal issues.Court proceedings and concomitant pretrial activities intrudeupon the privacy of patients and their families. Although later caseshave not tended to draw the media attention that Karen Ann Quin-lan's did, the decisions are a matter of public record and are oftenreported by the media, making the patients' personal medical deci-sions or those of their families public. Even without media coverage,the intrusion of the officers and functionaries of the courts into suchpersonal decisions constitutes an unacceptable violation of the pa-tients' privacy. This "right of privacy has no more conspicuous placethan in the physician-patient relationship, unless it be in the priest-penitent relation."1 50IV. CONCLUSIONThe plight of patients whose existences are maintained againsttheir wishes or over their objections through the use of life-sus-taining therapies is an unfortunate consequence of the ongoing ad-vances in medical expertise and technology. Many patients whowould otherwise have died of their illnesses or injuries can now havethe moment of their deaths suspended for months or years, by artifi-cial means, such as ventilators or mechanical feeding systems. Phy-sicians caring for these patients have been forced by the patients,the patients' families, and their own consciences to grapple with theissue of withdrawal of support. For various reasons the courts, too,have been forced to get involved in some of these cases and havemade good faith efforts to provide humane solutions to the problemsposed. No matter how thoughtful a court's deliberations, no matterhow delicately balanced its views of the interests at stake, and nomatter how detailed its inquiry into the circumstances of the case,no court can do any more than provide a legal opinion on what istruly a medical question. This reality and the very critical inadequa-cies of this approach were summed up by pediatric surgeon (andlater U.S. Surgeon General) C. Everett Koop shortly after the Quin-lan decision:148. In re Spring, 405 N.E.2d at 122.149. Id. See also Quinlan, 355 A.2d at 672; Storar, 438 N.Y.S.2d at 276; Torres,357 N.W.2d at 341 n.4.150. Doe, 410 U.S. at 219 (Douglas concurring).1990]MAINE LAW REVIEWI can think of no more tragic circumstance. . . than to have a legaldecision made by someone in the field of jurisprudence who has notlived through these circumstances, and who could not in a lifetimeof testimony understand .what the problems are and how theyshould be handled. His training, experience and his emotions havenot been intimately involved with similar circumstances in the pastwhere his decision and his decision alone is the one that must an-swer all the questions, no matter how inadequately.151The termination-of-treatment questions, and the fates of the af-fected patients, must be removed from the field of law and returnedto the field of medicine. This solution can most effectively be accom-plished by a single definitive ruling by the Supreme Court thatevery individual has a federal constitutional right to request thewithdrawal of life-sustaining therapies. Until that time, the most ba-sic human dignity and most fundamental right of every person todetermine his or her own fate are at risk. The dignitary loss and theterrible price in suffering that will be paid by any patient who isforced by the vagaries of the current system to undergo, against hisor her will, an artificially prolonged dying process, are far too greatto be denied and demand that the appropriate solution to this prob-lem be provided now.Patricia Lerwick151. Quoted in Armstrong & Cohen, 18 Hastings Center Rpt. at 40.[Vol. 42:193

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