Lead Opinion
delivered the opinion of the court:
In this cause,
On October 5, 1988, upon petition by the public guardian, the circuit court appointed him as plenary guardian of the person of Mr. Greenspan. The public guardian’s petition to terminate Mr. Greenspan’s life-support systems was filed on October 11, 1988, and on October 12 the circuit court appointed Andrew R. Gelman as guardian ad litem to protect Mr. Greenspan’s interests in connection with that petition. On October 21, the circuit court denied a motion by the guardian ad litem to strike and dismiss the petition on the grounds that the public guardian lacked standing, and the public guardian filed an amended petition to reflect the length of time that Mr. Greenspan had been in his current medical condition. On November 2, 1988, the circuit court denied the public guardian’s amended petition. The public guardian appealed to the appellate court. We then ordered the appeal taken directly to us under Supreme Court Rule 302(b) (107 Ill. 2d R. 302(b)).
I. FACTS
Mr. Greenspan, then a 76-year-old Chicago resident, suffered a stroke in November 1984, which resulted in the death of areas of his brain cells, left him unconscious, and is irreversible. In 1983, Mr. Greenspan had also been diagnosed as suffering from an organic brain syndrome, a senile dementia of the Alzheimer’s type that was becoming increasingly acute. In December 1984, Mr. Greenspan became a nursing home resident. Mr. Greenspan has no dependent relatives or children, though his wife and adult children are living.
Mr. Greenspan has never executed a living will or a health care power of attorney. In fact, the Illinois Power
Medical testimony tends to prove that, for some five years now, Mr. Greenspan has been in a chronic vegetative state, meaning that he retains only the primitive cortical brain functions that regulate breathing and some other basic life processes separate from consciousness. There is no reasonable hope that he will recover from his condition. He lies in a fetal position, with severe muscular contracture, and with a nasogastric (artificial feeding) tube inserted through one of his nostrils.
At the hearing on the public guardian’s petition, Dr. Allan Burke, a consulting physician, testified regarding Mr. Greenspan’s medical condition and regarding medical ethics applicable to his case. In addition, a stipulation was received as to testimony of Mr. Greenspan’s current attending physician, Dr. Charles Schikman, regarding Mr. Greenspan’s condition. Dr. Steven H. Miles testified on medical ethics in cases such as Mr. Greenspan’s. Mr. Greenspan’s wife, two of his children, and a longtime employee of Mr. Greenspan testified regarding Mr. Greenspan’s beliefs about being artificially maintained if one is completely incapacitated.
A. Medical Testimony
Dr. Burke. The testimony of Dr. Allan Burke, who examined Mr. Greenspan and is a board-certified neurologist and assistant professor of clinical neurology at Northwestern University, was as follows.
Mr. Greenspan makes no eye contact with other persons and does not respond to stimuli, including painful stimuli. Electroencephalography confirms the lack of response.
If Mr. Greenspan had suffered his illness and stroke in earlier decades, he would soon have died from their effects. His death is prolonged now because of advances in artificial nutrition and hydration. Mr. Greenspan is terminally ill in the sense that his illness would have been terminal if current means of keeping him alive were unavailable. If Mr. Greenspan’s artificial food and water were discontinued by removal of his feeding tube, he would die within a week at most. Such death would result from the combination of his terminal condition generally and one of its specific results, his inability to swallow. By contrast, 17 years is the record period for a patient’s remaining in a chronically vegetative state with the aid of a feeding tube before dying. Analgesics could be given to relieve any pain associated with withdrawal of the feeding tube, but Mr. Greenspan shows no ability to feel any pain from any source.
It is consistent with sound medical practice and medical ethics to remove Mr. Greenspan’s feeding tube, and its continued use “not only does nothing to reverse the injury of the brain, but actually allows the disease to
(The guardian ad litem later stated to the trial court that he had attempted to find a physician who would testify in support of a position different from Dr. Burke’s but that he had been unable to do so. The American Medical Association as amicus advises this court that, in circumstances resembling those alleged here, withdrawal of artificial nutrition and hydration is ethically sound. However, the American Academy of Medical Ethics and various physicians as amici advise us of their view that deciding to withdraw artificial nutrition and hydration is not a matter of peculiarly scientific or medical competence, that there is no clear medical consensus supporting such withdrawal, and that proffered justifications for such withdrawal rest on no principle that could be limited to patients who are in a persistent vegetative state rather than extending to those who suffer from related dementing processes.)
Dr. Schikman. The parties stipulated that Dr. Charles Schikman, a board-certified internist who was then Mr. Greenspan’s treating physician and had been for the previous three years, would testify that he concurred with Dr. Burke’s findings and recommendation for removing the feeding tube.
Dr. Miles. Dr. Steven H. Miles testified on medical ethics. He is a practicing geriatrician, a board-certified internist, an assistant professor of internal medicine, and the associate director of the Center for Clinical Medical Ethics at the University of Chicago. He stated that artificial nutrition and hydration are a form of elective medical treatment and that medical ethics would support feeding-tube withdrawal in a situation such as Mr. Greenspan’s. Dr. Miles testified that the generally supported ethical view is that discontinuance of artificial food and water at a patient’s direction would not amount
Dr. Miles compared withdrawal of artificial food and water to withdrawal of chemotherapy when it is discovered that a cancerous tumor does not respond to the treatment. He also testified that medical ethics disfavors any policy absolutely requiring continued use of feeding tubes once they are put in place. He stated that such a policy might force patients and families to make a decision on the efficacy of the procedure prior to instituting it, despite the facts that some period of time is required in order to establish whether a coma is irreversible and that, until then, patients require medical support with food and fluids. He also testified that medical ethics literature treats a coma and a persistent vegetative state as equivalent conditions.
B. Family, Employee, and Religious Testimony
Belle Greenspan, who has been Mr. Greenspan’s wife for more than 50 years, and two of his four children testified. In addition, a 20-year employee of Mr. Greenspan, Helen Mueller, testified, and by stipulation a letter from Mr. Greenspan’s former rabbi was admitted into evidence as testimony. These witnesses depicted Mr. Greenspan as a loving, active, concerned, religiously and civically involved man prior to his stroke, and they unanimously testified that he would not wish to be sustained as he now is.
Mrs. Greenspan. Belle Greenspan testified that Mr. Greenspan had told her many times that he would rather be shot than reside in a nursing home. Mrs. Greenspan stated that, though they had never talked about life-support systems, Mr. Greenspan would never have wished to live without full control of his faculties or as a burden to others and that, based on her relationship and conversations
Mrs. Richardson. Marla Richardson, one of Mr. Greenspan’s daughters, testified to the deterioration in her father’s condition while he had been, in the nursing home and to his previously expressed views on artificially sustained life. She also testified as follows.
He may have shown some response to her visits initially, but not thereafter. Physical therapy was attempted but was unsuccessful. He makes no body or eye movement when she tries to talk to him. Mrs. Richardson recalled once discussing with her father a newsworthy case involving life-support systems (In re Quinlan (1976),
Ms. Rochelle. Shelley Rochelle, another daughter of Mr. Greenspan, testified that she had never had a response from her father when she visited him in the nursing home. She also testified that, based on occasional prior conversations with him about death and on his repeatedly voiced abhorrence of nursing home life, she felt that “never in a million years” would he have accepted
Ms. Mueller. Mr. Greenspan’s employee, Helen Mueller, testified that, on the very day of his stroke, she had talked with Mr. Greenspan about the disability of the wife of one of his former employees, and she and Mr. Greenspan had told each other that they would never wish to be on a life-support system or in a nursing home. She added that Mr. Greenspan had said that he and his wife had discussed the subject and were in agreement. She also recalled that she and Mr. Greenspan had discussed nursing homes on other occasions, but she could recall no specific conversation.
Rabbi Silverman. By stipulation, the contents of a letter from Mr. Greenspan’s former rabbi, Dr. Martin I. Silverman, of Albany, New York, were admitted into evidence as corresponding to what would be Rabbi Silver-man’s testimony. Rabbi Silverman stated that he had been the rabbi of Mr. Greenspan’s congregation from 1964 to 1972 and that he had had many lengthy weekly conversations with Mr. Greenspan between 1964 and 1966, when Mr. Greenspan was president of the congregation. He added that Mr. and Mrs. Greenspan were active congregation members throughout his service there as rabbi. He stated that, on the basis of the conversations, he believed that Mr. Greenspan would not wish to exist in his current condition.
C. Trial Court’s Decision
During argument in the circuit court, the guardian ad litem reviewed the evidence and the factors that he felt
Despite the guardian ad litem’s recommendation and the testimony just recounted, the trial judge denied the petition, stating:
“I do it on the basis that I believe that our legislature, in amending the Living Will Act in January of ’88 in which it provided that nutrition and hydration shall not be withdrawn or withheld from a qualified patient if the withdraw[a]l or withholding would result in death solely from dehydration or starvation rather than from the existing terminal condition.
It provides in there that — there is no question we have an irreversible condition here, but there has been no testimony that death is imminent.
Death in this case would be imminent from the withdraw^]! of the food and the hydration, so on the basis of what I believe the legislature has determined in January of this year, it would not even allow a mentally able person to provide for the withdrawal of food and water * * * >>
In this court, both the guardian ad litem and the public guardian support reversal of the circuit court’s judgment. Accordingly, on our own motion, the Americans United for Life Legal Defense Fund (AUL) was appointed amicus curiae to advance the position that life-sustaining nutrition and hydration should not be withdrawn from Mr. Greenspan. Subsequently, we allowed motions by the American Medical Association and by the Society for the Right to Die, Inc., for leave to file briefs as amici curiae in support of reversal. We also allowed motions by the Ethics and Advocacy Task Force of the Nursing Home Action Group, by the American Academy of Medical Ethics and certain interested physicians, and by the Free Speech Advocates for leave to file briefs as amici curiae in support of affirmance. In addition, we allowed a motion by certain members of the Illinois Senate
II. ANALYSIS
A. Standing
Initially, AUL contends that the public guardian lacks standing and is not the appropriate party to seek the relief he requests in his amended petition.
The public guardian replies that his amended petition for leave to order withdrawal of Mr. Greenspan’s artificial nutrition and hydration was filed pursuant to section 11a — 17 of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 110½, par. 11a — 17). That section provides in part:
“(a) To the extent ordered by the court and under the direction of the court, the guardian of the person shall have custody of the ward and his minor and adult dependent children; shall procure for them and shall make provision for their support, care, comfort, health, education and maintenance and such professional services as are appropriate ***.” (Emphasis added.)
In addition, the public guardian states that the practice in the circuit court of Cook County is that the court be petitioned, whenever possible, for specific leave for a guardian to make medical decisions. He states that the chief judge of the circuit court has announced the position that, unless a plenary guardian of the person is acting under a power of attorney for health care (see Ill. Rev. Stat. 1987, ch. 110½, par. 804 — 1 et seq.) or in compliance with the Illinois Living Will Act (Ill. Rev. Stat. 1987, ch. 110½, par. 701 et seq.), the guardian lacks authority to consent to removal of life-support equipment except to the extent ordered by the court and under the court’s direction. Accordingly, the public guardian contends that his standing and authority to file his petition are clear.
Without citing authority, AUL contends that, even if a guardian has standing to maintain an action such as the present one, the public guardian is an inappropriate party to do so. AUL states that it is unconscionable for the public guardian, as an official who serves in his county at the pleasure of the chief judge of the circuit court (Ill. Rev. Stat. 1987, ch. 110½, par. 13 — 1.1), to use his government position to “starve incompetent wards to death.” AUL also asserts that the public guardian should not be appointed guardian to seek discontinuance of artificial food and water for persons who are neither indigent nor without close family members.
Under section 13 — 5 of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 110½, par. 13 — 5), the public guardian may be appointed as guardian of any disabled adult who is in need of a public guardian and whose estate’s value exceeds the amount (currently $25,000) set in section 25 — 1 of the Act (Ill. Rev. Stat. 1987, ch. 110½, par. 25 — 1) for administration of small estates. We assume from the record and from the lack of any contrary allegations that Mr. Greenspan’s estate exceeds $25,000 in value. In addition, when the circuit court appointed the public guardian as guardian of Mr. Greenspan’s person, it did so on the basis of a verified petition that had been
When so appointed, the public guardian has the same powers and duties as other guardians appointed under the Act, with certain exceptions not relevant here. (See Ill. Rev. Stat. 1987, ch. 110½, par. 13 — 5.) Therefore, if, as we have already concluded, a guardian generally has standing to file a petition such as the present one, so does the public guardian.
B. Best Interests and Substituted Judgment
Apart from the question of standing, AUL contends that the relief sought by the public guardian conflicts with his statutory duties to provide for Mr. Greenspan’s “support, care, comfort, health, education and maintenance” and appropriate professional services. (Ill. Rev. Stat. 1987, ch. 110½, par. 11a — 17(a); see In re Estate of Burgeson (1988),
After the parties’ briefs were filed, we had occasion in another cause to address several of the legal issues involved here. (See In re Estate of Longeway (1989),
We decided in Longeway that a patient’s right to refuse medical treatment, including artificial nutrition and hydration, is supported by the common law (
(1) the incompetent is terminally ill as defined in section 2(h) of the Illinois Living Will Act (Ill. Rev. Stat. 1987, ch. 110½, par. 702(h)), i.e., the patient’s condition is incurable and irreversible so that death is imminent and the application of death-delaying procedures serves only to prolong the dying process;
(2) the incompetent has been diagnosed as irreversibly comatose or in a persistently vegetative state;
(3) the incompetent’s attending physician and at least two other consulting physicians have concurred in the diagnosis;
(4) the incompetent’s right outweighs any interests of the State, as it normally does;
(5) it is ascertained, by an appropriate means— e.g., by the procedure of substituted judgment on the basis of clear and convincing evidence as outlined in Longeway — what the incompetent presumably would have decided, if competent, in the circumstances; and
(6) a court enters an order allowing the surrogate to exercise the incompetent’s right to refuse the treatment.
Though a guardian’s duty is to act in a ward’s best interest, such a standard is necessarily general and must be adapted to particular circumstances. One such circumstance is a ward’s wish to exercise common law, statutory, or constitutional rights, which may sometimes influence or even override a guardian’s own perception of best interests. (See, e.g., In re Estate of Brooks (1965),
In Longeway, this court approved application of the substituted-judgment theory, which requires a surrogate decisionmaker to establish, as accurately as possible, what the patient would decide if competent. (Longeway,
If it is clearly and convincingly shown that Mr. Greenspan’s wishes would be to withdraw artificial nutrition and hydration, and if the other established criteria for permitting such withdrawal are met, Mr. Greenspan’s imputed choice cannot be governed by a determination of best interests by the public guardian, AUL, or anyone else. Otherwise, the substituted-judgment procedure would be vitiated by a best-interests guardianship standard, elevating other parties’ assessments of the meaning and value of life — or, at least, their assessments of what a reasonable individual would choose — over the affected individual’s own common law right to refuse medical treatment. Accordingly, the public guardian is not prevented by a best-interests standard from seeking relief in accordance with Mr. Greenspan’s wishes as determined by substituted-judgment procedure. See Longeway,
C. Effect of Living Will Act
Contrary to the views of AUL and of the circuit court, the Illinois Living Will Act (Ill. Rev. Stat. 1987, ch. 110½, par. 701 et seq.) does not bar the relief sought by the public guardian.
First, as noted in Longeway (
Second, a subsequent statute — the Powers of Attorney for Health Care Law (Ill. Rev. Stat. 1987, ch. 110½, par. 804 — 1 et seq.), enacted more than three years after the Illinois Living Will Act became effective — enunciated a public policy that withdrawal or withholding of food and water or fluids is within the powers eonferrable through a health care agency (see Ill. Rev. Stat. 1987, ch. 110½, pars. 804 — 10(a), (b)(1)); that the subsequent statute prevails over all inconsistent acts (see Ill. Rev. Stat. 1987, ch. 110½, par. 804 — 11); and that if the principal under a health care power also has a living will, the living will shall not be operative so long as the agent under the power is available to act (see Ill. Rev. Stat. 1987, ch. 110½, par. 804 — 11). See Longeway,
As AUL points out, it is true that, with a more recent effective date than that of the Powers of Attorney for Health Care Law, the legislature has expressed itself by amending the Illinois Living Will Act to provide, in the present section 2(d) thereof, that a “qualified patient” shall not be deprived of artificial nutrition and hydration
However, a “qualified patient” merely means one who is terminally ill and has executed a living will. (Ill. Rev. Stat. 1987, ch. 110½, par. 702(g).) The principal in a health care power of attorney will not necessarily have executed a living will, and, even if such a will has been executed, its operation is suspended so long as the health care agent is available to act. (See Ill. Rev. Stat. 1987, ch. 110½, par. 804 — 11; Longeway,
Since there is no conflict between the Illinois Living Will Act and the Powers of Attorney for Health Care Law by virtue of the Act’s amendment, AUL can extract no public policy from section 2(d) of the Act that outweighs the public policy expressed in the Law. Both statutes are relevant guides to public policy (as in Longeway,
As in Longeway (
D. Imminence of Death
AUL contends, and the circuit court found, that there was no testimony that Mr. Greenspan’s death would be imminent in the absence of the feeding tube. Before withdrawing the feeding tube, imminence of death would be required if the Illinois Living Will Act applied directly here; though the Act does not apply directly, its requirement of imminence was effectively adopted by Longeway (
As we have seen, Dr. Burke did testify that, without the tube, Mr. Greenspan would die in no more than a week. Though AUL argues that Dr. Burke acknowledged that, with feeding tubes, patients have been known to live for years in a chronic vegetative state, such a fact is irrelevant. Under section 2(h) of the Illinois Living Will Act, from which Longeway (
Imminence must be judged as if the death-delaying procedures were absent, and in this case the testimony was that Mr. Greenspan’s death would occur within a week after withdrawal of the feeding tube. “Imminent” has been defined as “[n]ear at hand; mediate rather than
Accordingly, the circuit court erred in finding an absence of testimony that Mr. Greenspan’s death was imminent. The court also erred in denying the public guardian’s amended petition to the extent that the denial relied on that ground.
E. Effect of Nursing Home Act
AUL contends that various provisions of the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1987, ch. 111½, par. 4151 — 101 et seq.) require that the nursing home where Mr. Greenspan resides continue to give him food and water and that the Act thus forbids the relief sought by the public guardian. AUL points to a provision contemplating that nursing homes will furnish residents with “personal care, sheltered care or nursing” (Ill. Rev. Stat. 1987, ch. 111½, par. 4151 — 113), “sheltered care” being defined as “maintenance and personal care” (Ill. Rev. Stat. 1987, ch. 111½, par. 4151 — 124), “maintenance” being defined as “food, shelter and laundry services” (Ill. Rev. Stat. 1987, ch. 111½, par. 4151 — 116), and “personal care” being defined as including assistance with “meals *** whether or not a guardian has been appointed” (Ill. Rev. Stat. 1987, ch. 111½, par. 4151 — 120). In addition, AUL cites a provision that “neglect” is “a failure in a facility to provide adequate medical or personal care or maintenance, which failure results in physical or mental injury to a resident or in the deterioration of a resident’s physical or mental condition.” (Ill. Rev. Stat. 1987, ch. 111½, par. 4151 — 117.) While admitting that a resident has the right to refuse medical treatment (see Ill. Rev. Stat. 1987, ch. 111½
We find these contentions by AUL to be immaterial. The public guardian does not request that Mr. Greenspan’s artificial nutrition and hydration be discontinued either by or at the nursing home where he resides. The Act specifically grants a resident’s guardian the right to procure the resident’s discharge. (Ill. Rev. Stat. 1987, ch. 111½, par. 4152 — Ill.) In any event, even before discharge, the Act contains no provision forbidding a nursing home from acting in accordance with a court order. A patient has the right to obtain or refuse medical treatment (Ill. Rev. Stat. 1987, ch. 111½, par. 4152 — 104), and not even the Department of Public Health is permitted to prescribe the course of treatment by a resident’s personal physician (Ill. Rev. Stat. 1987, ch. 111½, par. 4153 — 201). We do not believe that generalized references to providing food, water, and meals should override either a resident’s specific right to refuse medical treatment, the definition of health or medical care found elsewhere in our law (e.g., Ill. Rev. Stat. 1987, ch. 110½, pars. 804 — 10(a), (b)(1); Longeway,
During the period of time that has elapsed since this appeal was filed, Mr. Greenspan’s condition conceivably could have improved, remained the same, or worsened. Moreover, Longeway was decided in the meantime and bears on the evidentiary submissions and standard of proof necessary in the circuit court. We note that one of the evidentiary requirements articulated in Longeway is that, in the case of an incompetent and terminally ill patient, at least two consulting physicians concur in the attending physician’s diagnosis of an irreversible comatose or persistently vegetative state. (Longeway,
Accordingly, the judgment of the circuit court of Cook County is vacated, and this cause is remanded to that court for further proceedings consistent with this opinion.
Judgment vacated; cause remanded.
Dissenting Opinion
dissenting:
I respectfully dissent.
In In re Estate of Longeway (1989),
The Longeway opinion held that a guardian may refuse artificially supplied nutrition and hydration on behalf of an incompetent ward only if: (1) the incompetent patient is terminally ill as defined in the Living Will Act; (2) the incompetent has been diagnosed as irreversibly comatose or in a persistently vegetative state; (3) the incompetent’s attending physician and at least two other consulting physicians concur in the diagnosis; (4) the incompetent’s right to refuse treatment outweighs the State’s countervailing interests; (5) there is clear and convincing evidence that the incompetent patient, if competent, would approve the withdrawal in the circumstances; and (6) a court determines that the above requirements
The majority opinion does not follow this standard in several significant respects. First, and of crucial importance, the majority effectively eliminates the requirement that the incompetent patient must be terminally ill within the meaning of the Living Will Act (Ill. Rev. Stat. 1987, ch. 110½, par. 702(h)) before nutrition and hydration can be withdrawn. A terminal condition referred to in Longeway is defined in section 2(h) of the Living Will Act as:
“an incurable and irreversible condition which is such that death is imminent and the application of death delaying procedures serves only to prolong the dying process.” (Ill. Rev. Stat. 1987, ch. 110½, par. 702(h).)
The majority acknowledges that the evidence at the hearing in the circuit court established that Mr. Greenspan’s death will not be imminent unless the feeding tubes are removed. To overcome these evidentiary deficiencies, the majority states that imminence must be judged as if the life-sustaining procedures were not in place. It then states that the testimony that Mr. Greenspan’s death would occur within a week after withdrawal of the feeding tube is sufficient to satisfy the requirement of imminence of death. One submits that death for almost anyone would result or would be imminent if nourishment were withdrawn for a week.
In so holding, the majority does not conform to the definition of a terminal condition stated in the Living Will Act, and instead adopts the somewhat extraordinary testimony of Dr. Burke that “Mr. Greenspan is terminally ill in the sense that his illness would have been terminal if current means of keeping him alive were unavailable.” (See
The definition of “terminal condition” stated in the Living Will Act requires that the patient’s death be imminent as a result of the incurable and irreversible condition whether or not death-delaying procedures are applied. Life-sustaining measures, such as the provision of food and water, may be withdrawn only if the patient will die regardless of whether or not the measures are administered. The Living Will Act’s carefully narrow definition of “terminal condition” permits the withdrawal of life-sustaining measures, such as food and water, only when those measures would be futile. Mr. Greenspan is not terminally ill within the meaning of the Living Will Act because he is not suffering from an incurable and irreversible condition “which is such that death is imminent.” Ill. Rev. Stat. 1987, ch. 110½, par. 702(h).
As I noted in my dissenting opinion in Longeway, it is said that 19.4% of patients in intermediate care nursing facilities and 33.8% of patients in this State’s skilled nursing homes receive tube-feeding or need assistance to obtain sustenance. (Longeway,
Even if the majority did not hold that Mr. Greenspan is “terminally ill” within the meaning of the Living Will Act, it errs in holding that his death will be caused by his underlying terminal condition, rather than from the withdrawal of artificial nutrition and hydration. (
The assumption of the majority that Mr. Greenspan is unable to swallow as a result of his condition is gratuitous. The record shows that, although Mr. Greenspan suffered a stroke in November 1984, the nasogastric feeding tube was not inserted until the spring of 1985. Mr. Greenspan’s daughter testified that Mr. Greenspan ate pureed food for several months after he was admitted to the nursing home. Too, Dr. Burke testified that patients, like Mr. Greenspan, who are in a chronic vegetative state retain brain-stem reflexes, including the ability to swallow. The record suggests that Mr. Greenspan retains his ability to swallow food, and that the nasogastric tube was inserted only to make feeding him more convenient and to eliminate any risks associated with feeding him pureed food.
In view of the evidence that Mr. Greenspan retains the ability to swallow, the majority’s conclusion that he will die as a result of his supposed “inability to swallow” or “terminal illness” cannot stand. Mr. Greenspan will not die of senile dementia or the stroke. If the nasogastric tube is removed and he is not otherwise supplied with nutrition and hydration, Mr. Greenspan vfill die of starvation
The majority does remand the cause because, inter alia, “clear and convincing evidence is required in order to establish Mr. Greenspan’s intent regarding withdrawal of the feeding tube.” (
In Longeway, this court held that the evidence must clearly and convincingly demonstrate that an incompetent patient, if competent, would refuse nutrition and hydration under the circumstances. (Longeway,
The surrogate decisionmaker may not presume that general statements, such as an expression by the patient that he would not want to be “artificially sustained” by “heroic measures” in a “hopeless” condition, indicate that the patient would choose to forgo all life-sustaining treatment if physically incapacitated in any manner. (In re
“If such statements were routinely held to be clear and convincing proof of a general intent to decline all medical treatment once incompetency sets in, few nursing home patients would ever receive life-sustaining medical treatment in the future. The aged and infirm would be placed at grave risk if the law uniformly but unrealistically treated the expression of such sentiments as a calm and deliberate resolve to decline all life-sustaining medical assistance once the speaker is silenced by mental disability.”
The American Medical Association’s amicus curiae brief simply argues that providing Mr. Greenspan with nutrition and hydration is not beneficial because it does not advance his interest in recovery. But of course, food and water are not consumed to treat or cure disease. Instead, they provide ordinary sustenance and comfort. It appears to be the argument of the amicus that patients, like Sidney Greenspan, who are in a persistent vegetative state must be able to derive greater benefit from food and water — such as assistance in recovering from the underlying disability — than those who are not in that condition. I do not believe that the nourishing of Mr. Greenspan should be discontinued because he is impaired and cannot recover. To do that would mean that his life in its present form is not worth living. (Cruzan v. Harmon (Mo. 1988),
JUSTICE CALVO joins in this dissent.