1983 Claims Agains State Hospitals California
West J Med. 2002 Mar; 176(two): 124–127.
Dialogue on End-of-Life Decision Making
Legal implications of the Wendland case for end-of-life decision making
Jon B Eisenberg
1 Horvitz & Levy LLP 1970 Broadway, Ste 1200 Oakland, CA 94612
J Clark Kelso
2 Capital Eye for Government Law and Policy University of the Pacific McGeorge School of Police force Sacramento, CA
In Conservatorship of Wendland, the California Supreme Courtroom established a high standard of proof for finish-of-life decision making on behalf of patients who are incompetent but conscious and take a court-appointed conservator.one The courtroom'due south stance establishes an easier standard of proof for some situations where there is no conservator, but the opinion leaves many questions unanswered. Nosotros address the implications of Wendland for health care professionals in California and, in detail, the questions of what evidence of a patient's end-of-life wishes is required for physicians to withhold life-sustaining treatment and how potent that evidence must exist in diverse situations.
PREVIOUS RIGHT-TO-DIE CASES IN CALIFORNIA
California law establishing the right to refuse medical treatment began at the far end of cognitive impairment—coma—after the 1976 case of Matter of Quinlan, in which a New Jersey courtroom held that physicians could withdraw a respirator from a permanently unconscious patient at the family's request.ii
The offset postal service-Quinlan California case, in 1983, was Barber v Superior Court, in which physicians had discontinued a surgery patient's artificial diet and hydration (ANH) at the family unit'due south request after the patient had suffered cardiac arrest and get comatose.3 The court held that the physicians could non exist charged with murder.
The next group of California cases was at the opposite end of the spectrum, involving patients who were seriously ill but fully cognitive. In Bartling v Superior Court, a competent patient suffering from emphysema, an abdominal aneurysm, and lung cancer wanted his physicians to remove his ventilator.4 The court held that he could crave them to exercise and then over their objections. In Bouvia v Superior Court, the court held that a quadriplegic adult female with cerebral palsy who was restricted to bed in a public hospital could require her physicians to withdraw ANH.v
Then came two cases in 1988 involving patients who were neither asleep nor fully cognitive simply in a persistent vegetative land (PVS). In Conservatorship of Drabick, the court said that a court-appointed conservator could require physicians to withdraw ANH from a car-accident victim who had been in a PVS for v years.6 In Conservatorship of Morrison, the elderly PVS patient was in a public hospital where physicians had refused her conservator's request to withdraw ANH but offered to transfer the patient to another facility where others would exercise so.7 The court held that the physicians could turn down on moral grounds to withdraw ANH simply could be required to transfer the patient, as they had offered.
These cases seemed to have established a wide right for a patient or a substitute decision maker to direct the withdrawal of ANH.
Conservatorship of Wendland was unprecedented because it occupied a centre ground: between competency and PVS.
CALIFORNIA'S STATUTORY HEALTH CARE DECISIONS Law
In add-on to judicial decisions on the right to die, California has all-encompassing legislation on the subject field: the Health Care Decisions Law.8 This constabulary authorizes a conservator or a surrogate whom the patient has designated orally or in a written directive to direct that life-sustaining treatment, including ANH, be withheld or withdrawn in accordance with the patient's "wishes to the extent known." If such wishes are not known, the conservator or surrogate must decide in accordance with the patient's "best interest."9
THE DECISION IN CONSERVATORSHIP OF WENDLAND
The legal issue in Wendland concerned the level of proof necessary to establish a patient'southward "wishes to the extent known."
The normal standard of proof in civil cases is "preponderance of testify," which means more likely than not (ie, >l%). The highest standard of proof, used in criminal cases, is proof "beyond a reasonable doubt." Between these two standards is an intermediate standard of proof, "clear and convincing evidence," which has been used in civil cases involving fundamental or of import rights. The phrase "articulate and convincing" means explicit and unequivocal.
The California Supreme Courtroom held that the law requires clear and disarming evidence of the patient's wishes under circumstances like Wendland, where a conservator requests withdrawal of ANH from an incompetent simply conscious patient.
The court required clear and convincing evidence in that situation because of a difference between patient-designated surrogates and court-appointed conservators. People designate surrogates in whom they placidity "the highest degree of confidence," whereas a courtroom-appointed conservator who might be unrelated to the conservatee "cannot be presumed to take special knowledge of the conservatee's health care wishes."x Thus, the court concluded, the higher standard of proof is required to withhold medical treatment from a witting conservatee to "help to ensure the reliability of the determination" by the conservator.11 The court ignored the fact that Robert Wendland's conservator was his wife and thus arguably could exist presumed to have special knowledge of Robert's wishes (peradventure because the court did non desire trial courts to exist required to make up one's mind alien claims among relatives who affirm some special connection to, and cognition about, a conservatee).
The court was careful, however, to limit its decision: The articulate and convincing evidence standard is justified "only when a conservator seeks to withdraw life-sustaining handling from a witting, incompetent patient who has non left legally cognizable instructions for health care or appointed an agent or surrogate for health care decisions."12 In contrast, the lower "preponderance of evidence" standard will apply to patients who either are permanently unconscious, executed an advance directive, designated a surrogate, or have a conservator and are conscious but the decision is not intended to result in expiry.xiii
WENDLAND'Due south IMPLICATIONS FOR CALIFORNIA MEDICAL Do
The Wendland opinion clearly prescribes the standard of proof for the situations the court mentioned. But the stance raises some perplexing questions.
What evidence will satisfy the clear and disarming standard for conscious conservatees?
The Wendland opinion does not say what constitutes clear and convincing prove, other than to hold that Robert's preincompetency comments—that he "would not desire to be a vegetable" or to exist "kept alive with tubes"—were not clear and disarming in lite of his condition. Such use of everyday language is typical. Few people discuss their end-of-life wishes in the jargon of lawyers or physicians or in slap-up detail. Thus, in the course of medical practise, a physician volition rarely come across a situation where a conservatee'south preincompetency comments are specific plenty to permit withholding life-sustaining treatment. Conservatorship will, therefore, nigh always hateful that life-sustaining treatment cannot be withheld.
What evidence will satisfy the "preponderance of show" standard in situations where it applies?
Once again, the Wendland opinion does not say what constitutes preponderant evidence, but here it gives a clue. The court idea information technology had to require articulate and convincing evidence to protect Robert'due south life. The implication, then, is that the preponderance of evidence standard, which his preincompetency comments met, would not take protected his life. This indicates that comments similar Robert'due south, that he "would not desire to exist a vegetable" or to exist "kept alive with tubes," can be sufficiently preponderant to allow withdrawal of life-sustaining treatment pursuant to an accelerate directive or at the direction of a surrogate or conservator in situations where the preponderance standard applies.
What is the standard of proof when no advance directive, surrogate, or conservator exists?
Patients commonly have not executed an advance directive and have no surrogate or conservator, and on this point Wendland is subject to alien interpretations. On the one hand, reading the opinion as narrowly equally the court prescribed, the standard seems to be preponderance of evidence considering articulate and convincing evidence is required only when the patient has a conservator. On the other manus, the justification for requiring articulate and disarming evidence in Wendland—that the college standard of proof is required to ensure the reliability of a decision by someone not designated by the patient—would seem to employ with equal forcefulness when there is no advance directive, surrogate, or conservator.
On this point, the authors of this article disagree. One of the states (J B E) believes that the Wendland court plainly intended its opinion to use narrowly so that, where in that location is no accelerate directive, surrogate, or conservator, physicians may withdraw life-sustaining treatment at the direction of family unit and/or friends who supply preponderant evidence of end-of-life wishes like Robert Wendland's. The other (J C Grand) believes that the Wendland opinion's reasoning inevitably leads to the conclusion that clear and convincing show is required in these situations.
Should conservatorships be avoided because they invoke the higher standard of proof?
A startling event of the Wendland stance that the court might non take intended is that it evidently creates an incentive to avoid conservatorships for seriously sick persons unless they have explicitly and unequivocally stated their terminate-of-life wishes in an accelerate written directive. A conservatorship will invoke the articulate and disarming prove standard, profoundly restricting stop-of-life decision making. In such situations, physicians should counsel the patient's family and friends to consider the benefits of conservatorship versus the burden imposed by the higher standard of proof in deciding whether to seek a conservatorship.
What if an advance directive designates an agent but includes no specific or pertinent instructions?
Wendland implies that when there is an advance written directive, the standard of proof is preponderance of evidence. Such requirement of proof suggests that it is not plenty only for the directive to designate an amanuensis; in that location must as well be some testify of end-of-life wishes, whether stated in the directive or shown by preincompetency comments. Thus, if the directive includes no specific instructions, or its instructions do not seem to embrace the situation at hand, family and friends should be consulted to decide whether the patient said anything before incompetency that would satisfy the preponderance standard. If at that place is no such evidence of preincompetency wishes, the law is unclear, but it is arguable that the designated amanuensis must decide based on the Health Care Decisions Law's "best interest" standard rather than the "wishes to the extent known" standard.
What is required for conscious developmentally disabled conservatees who were never competent?
Developmentally disabled adults commonly have courtroom-appointed conservators. Under Wendland, the conservatorship invokes the articulate and disarming evidence standard for end-of-life decision making if the patient is conscious. But if the patient was never competent, there cannot be clear and convincing evidence of the patient'due south "wishes to the extent known." In these cases, the Wellness Care Decisions Police volition allow withdrawal of lifesustaining treatment only if it is in the patient'south "all-time interest," which the Wendland opinion says besides must be proved for conscious conservatees by clear and convincing prove—a daunting chore.
Conclusion: THE Need FOR Advance WRITTEN DIRECTIVES
The most important message from Wendland is that people who desire a say in their stop-of-life decision making should execute an accelerate written directive, which will avoid the burden of the higher standard of proof. Currently, some 10% to 20% of Americans execute advance written directives.14 Wendland challenges health care professionals to increment that number. Whenever possible, physicians should hash out end-of-life wishes with their patients, urge them to execute advance written directives, and include records of pertinent conversations and copies of directives in patients' medical files.
Take your patients written an advance wellness directive?
Notes
Competing interests: Encounter "Authors" at end of article
Authors Jon B Eisenberg, a partner with the law firm of Horvitz and Levy LLP specializing in ceremonious appeals, filed a pro bono "friend of the court" cursory in the California Supreme Courtroom for 6 health care organizations and 43 bioethicists in support of Rose and Robert Wendland. J Clark Kelso, a Professor of Constabulary and Managing director of the Majuscule Center for Government Constabulary and Policy at the University of the Pacific's McGeorge School of Police force, is a legal commentator on public policy issues in California.
References
1. Conservatorship of Wendland, 26 Cal 4th 519 (2001). [PubMed]
2. Matter of Quinlan, seventy NJ 10 (1976).
3. Barber v Superior Court, 147 Cal App 3d 1006 (1983).
four. Bartling v Superior Court, 163 Cal App 3d 186 (1984).
5. Bouvia v Superior Court, 179 Cal App 3d 1127 (1984).
6. Conservatorship of Drabick, 200 Cal App 3d 185 (1988).
7. Conservatorship of Morrison, 206 Cal App 3d 304 (1988).
viii. California Probate Code §4600 et seq.
ix. California Probate Lawmaking §§2355, 4684 & 4714.
ten. Conservatorship of Wendland, 26 Cal 4th 545 (2001). [PubMed]
xi. Conservatorship of Wendland, 26 Cal 4th 546 (2001). [PubMed]
12. Conservatorship of Wendland, 26 Cal quaternary 551 (2001). [PubMed]
xiii. Conservatorship of Wendland, 26 Cal quaternary 555 (2001). [PubMed]
14. 29 Cal Police force Rev Commission Report at 16 (1999).
Articles from The Western Periodical of Medicine are provided here courtesy of BMJ Publishing Group
Source: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1071696/
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