*1 In re Rosebush In re ROSEBUSH 8, 1991, at Detroit. Decided No. 111082. Submitted October Docket 8, 1992, September at 9:15 a.m. petitioned Jacqueline Circuit Oakland Francis allowing of artificial for an the discontinúance Court order daughter, support life their minor Joelle Rose- means of Prosecutor, County obtained a The who earlier bush. Oakland action, oppo- injunction responded preliminary against such Joelle, ten, vegeta- persistent age left at had been in a sition. spinal was and she suffered a tive state after her cord severed as a sustained in an automobile heart attack result of trauma Although destroyed and stem was not she accident. her brain seq.; by MSA defined MCL 333.1021 et was not "brain dead” as 14.15(1021) seq., physicians that she would et her believed regain her or able on own. never consciousness to breathe Kuhn, J., sought court, the order The Richard D. entered appealed. petitioners. prosecutor The Appeals The Court held: incompetent legally have individuals Minors other life-sustaining parents right medical The to decline treatment. right surrogates in of that minor as the exercise act considering expressed any, upon preference, if the minor’s to withhold interests. involvement the decision best Judicial need treatment for a minor occur or withdraw disagree only parties directly about treat- where the concerned ment, appropriate are established or where other reasons court’s involvement. Michigan recognizes 1. and adheres to the common-law doc- consent, logical provides corollary of which trine of informed any person right forms to decline and all that a has the intervention, including lifesaving life-prolonging medical lifesaving to refuse medical treatment. youth. incompetence or Inasmuch as minors not lost because of concerning legal capacity their to make decisions
_lack References 2d, Death 605. §§ Am Jur of extraordi- authorize discontinuation Power of court order or sustaining nary human ALR3d 237. life. 79 medical means of 195 Mich parents speak for them in matters medical treatment and their treatment, parents may act as their minor of medical children’s treatment, concerning including surrogates making decisions lifesaving or withhold or life- the decision whether withdraw prolonging measures. respect public policy the roles 2. It is the of this state to spiritual played by patient, family, physician, and adviser in judicial process deciding Accordingly, medical treatment. *2 process deciding or intervention in the of whether to withhold life-sustaining proper only withdraw treatment for a minor is concerned, disagreement among parties directly there where is compelled by appropriate reasons. or where other minor, life-sustaining parents deciding 3. The of a whether withdrawn, subject are either treatment should be withheld judgment” to the "substituted standard or the "best interests” judgment of it standard. Where the minor was mature and can have, made, choice the minor would the ascertained what applies, parents judgment standard and the must substituted of make the decision on the basis what the minor would have decided if able to do so. Where the minor was immature and it made, cannot be ascertained what choice the minor would have parents good-faith the make a determination of must whether life-sustaining withholding serve the of treatment would the minor’s best interests. Factors relevant to that determination include, present to: the minor’s of but are not limited level emotional, physical, sensory, cognitive functioning; and condition, degree physical pain resulting of from the medical treatment, treatment; degree and termination of the of humiliation, resulting dependence, dignity probably loss of. treatment; expectancy from the condition and the life treatment; prognosis recovery with and without various risks, effects, options; and the side and benefits of options. each of those 14.15(1021) seq.; seq., 4. MCL 333.1021 MSA et et which provides person receiving life-sustaining that death of a treat- upon spontaneous ment occurs the irreversible cessation of functions, governs brain the determination of when such a person prevent dies. The act does not the removal of life- support apparatus until the has been declared brain dead. liability may imposed 5. Criminal for homicide not be on the parents physician life-sustaining or the of a minor from whom agency medical treatment is withheld. Criminal as the of cause death, homicide, lacking necessary element of such instance because the decision to withhold treatment is autho- In re withholding life-sustaining law rized under common and the death, injury merely cause but allows treatment does not course. illness to its natural and inevitable take Affirmed. Sawyer, J., dissenting part, that the formulation stated systems
guidelines in cases other for the removal judiciary, pursuant legislative that the than this is a function principle separation powers, should constitutional not undertake. — — Medical. of Minors Withhold- Parent and Child Treatment Life-Sustaining ing or Withdrawal of Treatment. par- consent accords The common-law doctrine informed to determine whether ents minor minor; in from the treatment should be withheld or withdrawn decision, making parents minor’s should consider the interests; preference judicial in the deci- or best involvement directly only parties sion-making process where occur treatment, appropri- disagree or where other concerned about compel ate such involvement. reasons Payne (by Vlcko, Broder, Andrew Lane, & P.C. Naoum), peti- Lynn J. Broder and Stevens tioners. Prosecuting Attorney, Thompson, Rob-
Richard *3 Appellate Chief, Division, Williams, and C. ert Prosecuting Modelski, Attor- J. Assistant Michael respondent. ney, for the Amici Curiae: Michigan,
Joseph Zanglin, Right Life P. for Inc. (by
Kerr, Richard D. Weber & Weber Russell Swanson), Michigan for State Geha and Joanne Society. Medical (by
Dykema Bettye Elkins, Kathleen S. Gossett Brooks, R. Lewis, A. and Daniel McCree Teresa Shemke), Michigan Hospital Association. App 675 195 Mich Opinion op the Court Heuer, Brian G. Jaffe, Snider, P.C. (by Raitt & Shannon), Neurology. Academy for American (Groves, Fenella Giles R. Scoñeld and Rouse. McCleary, Wyatt M. & David Decker of Coun- Die, Inc., sel), and Right for the Society Inc. Dying, Concern for Sawyer Mackenzie, P.J., and and Jan-
Before: sen, JJ.
MacKenzie,
from an
appeal
P.J. This
is an
allowing petitioners,
parents
of Joelle
order
Rosebush,
to authorize
the removal of
daughter. Although
minor
for their
systems
rendered techni-
appeal
issues raised
this
were
death, appellate review is
upon
moot
Joelle’s
cally
in-
the issues
appropriate
nevertheless
because
questions
public significance
volve
Highland
Recreation
evade review.
yet
recur
Comm,
v Natural Resources
Defense Foundation
(1989).
324, 327;
i on 1976. May Joelle Rosebush was born On 12, 1987, she was involved a traffic January cord severed at the C-l spinal accident. Her was level, skull, and she went into just below spinal cord left Joelle injury cardiac arrest. from the completely irreversibly paralyzed respi- neck down and unable breathe without during lack of cardiac arrest oxygen rator. The most, all, if not of Joelle’s cerebral destroyed *4 functions, persistent vegetative in a and left her In re Opinion of the Court that Joelle would It was uncontroverted
state. never regain and would never be consciousness own. Joelle’s brain stem to breathe on her able injuries destroyed, however, her did was not Michi- dead” as defined under not leave her "brain seq.; gan 333.1021 et MSA See MCL law. 14.15(1021) seq. et hospitalized at William Beaumont Joelle was spite Hospital Royal June, until 1987. In Oak steadily prognosis recovery of no and Joelle’s the deteriorating hopeful petitioners, condition, fu- rejected improvement condition, in Joelle’s ture the discontinuing option at then moved to the Neurorehabili- time. Joelle was Nursing Georgian at the Bloomfield tation Center petition- By 1988, it clear to Home. March became improved not that Joelle’s condition had ers that she would never vegetative progress from her then decided to authorize condition. Petitioners life-support systems. This decision the removal of treating with Joelle’s was made after consultation physicians, of the Neurorehabilitation the staff priest, family’s Center, ly’s and the fami- Catholic attorney. manager Joelle’s medical case March
sought at Children’s Hos- the assistance of doctors effectuating petition- pital Michigan—Detroit life-support. The bio- ers’ decision to discontinue ethics committee quently Hospital at Children’s subse- facility to that authorized Joelle’s transfer blocked, The transfer was for further evaluation. however, members at the Neurorehabili- after staff respondent, who obtained tation Center contacted restraining parte temporary order, and later ex an a prohibiting preliminary injunction, Joelle’s life-support systems. the removal of transfer or Following days trial, the court dissolved seven peti- preliminary injunction and authorized *5 195 Mich 675 App op Opinion the Court regarding any tioners "to make and all decisions daughter, the medical treatment including received their authority to, not limited to order but the respiratory of the removal ventilator that sustains Joelle’s August 13,
functions.” Joelle died on shortly respirator after her was deactivated. ii A right variously forego Courts have found a to life-sustaining medical treatment on the basis of (1) right three sources: the common-law to freedom bodily integrity, from unwanted interference with (2) right privacy liberty, the constitutional to or or (3) (New generally, Right Meisel, statute. See The to Die 1989), Wiley pp Publications,
York: Law 49- Michigan, right that, 54. We hold there is a or withhold withdraw medical treat- aspect ment as an of the common-law doctrine of informed consent.1 The trial court did not err in determining petitioners legal had the author- ity life-support systems. to order the removal of
B
Michigan recognizes and adheres to the com-
right
phys-
mon-law
to be free from nonconsensual
corollary
ical
invasions and the
in-
doctrine of
Accordingly,
physician
formed consent.
if a
treats
operates
patient
consent,
on a
without
physician
battery
has committed a
required
respond
damages.
Gaines,
Zoski v
(1935); Young
1, 9-10;
271 Mich
Oakland Gen
(1989);
Wittenberg,
NW2d
Banks v
82 Mich
(1978).
App 274, 279-280; 266
NW2d
logical corollary
of the doctrine of informed
patient generally possesses
consent is that the
right
right
consent,
is,
not to
to refuse
procedures.
Tay
medical treatment and
Werth v
lor,
141, 145;
190 Mich
497
2841;
US
110 S Ct
111 L
224
Ed 2d
(1990), and In
Quinlan,
10;
re
70
355
647
NJ
A2d
(1976).2
right
lifesaving
to refuse
medical treatment
incompetence
is not
lost because of the
or the
2
recognized, however,
generally
right
It is
that the
to refuse life-
sustaining
cases,
may,
outweighed by
in
rare
counter
vailing state interests. Four such state interests have been identified:
(1)
(3)
integrity
(2)
life,
preservation
protection
parties,
of
the
and
of innocent third
(4)
suicide,
prevention
of
the maintenance of the ethical
profession.
Grant,
Guardianship
of the medical
See In re
of
545;
(1987),
(1988);
109 Wash 2d
re
Kennedy
568 So 2d
Bludworth,
Hosp
(Fla, 1984);
Memorial
v
452 So 2d 921
D’Alessandro,
(Fla
1986),
App,
Corbett v
So 2d 368
den 492
398
review
Inc,
England
Hosp,
(Fla,
Brophy
1986);
v
Sinai
New
So 2d
Mass
Spring,
417;
(1986);
629;
In re
It is that well established their minor children in matters of medical treatment. JR, 584; 2493; See Parham v 442 US 99 S Ct 61 L (1979); supra; Zoski, Welsh, Ed 2d Bakker v NW Because medical includes the decision to decline lifesav- ing supra, intervention, Werth, it follows empowered regard- parents are decisions make ing withholding lifesaving withdrawal or or life- prolonging measures on behalf of their children.5
c Having determined that minors have the same. to decline treatment as their competent counterparts, parents adult and that surrogate act as right, decision makers to exercise restrictions, we if next consider what any, placed parents’ should be on the decision- making authority any, role, and what if the courts play decision-making process. should in the We decision-making process gen- hold that the should erally setting occur in the clinical without resort courts, to the but courts should be available making impasse to assist in decision when an making that, reached. We further hold decisions incompetent, patients, minors other surro- gate approx- decision makers should make the best patient’s preference imation of the on the basis of preference evidence; available expressed if such was never surrogate unknown, or is otherwise should make a decision based on the best interests of the patient._ Meisel, generally, course, supra, parents See ch 13. Of where the incompetent
of a minor child for some reason are themselves to act as makers, surrogate family decision and other members are unavailable unwilling surrogates, guardian appointed to act as should be Meisel, rights exercise the minor’s on behalf of the minor. See p 417. *8 675 op Opinion the Court
D involving the cases has found two research Our treatment of discontinuation vegetative persistent were in a minor children who Barry, In of So 2d state.6 (Fla 1984), petitioned parents App, for their ten-month- life-support systems terminate cir- son, comatose. The permanently who old was petition, the Florida granted cuit court doing, the court affirmed. In so Appeals Court stated:
Where, here, is parents’ informed decision as medical evidence backed uncontroverted ill and that his young terminally their child irreversible, their deci condition is incurable sion, think, any interest of the state we overrides through prolonging their child’s life extraordi no inter nary measures. We can conceive of state compel parents to great enough to continue est support system child a life to submit their prolong the merely do so this instance. To would ill, lacking in wholly terminally death of cognitive child completely functioning, unaware of of brain hope develop surroundings, and with no his being The means any ment now awareness. employed physicians are measures which even given not initiate their they testified would now is, think, knowledge It present situation. we obligation parents in such and the responsibility and an instance to exercise their making Barry, Mr. prerogative, as did and Mrs. as to whether these an informed determination See extraordinary measures should be continued. Quinlan. In re 2d So [445 371.] PVW, 1982), case, (La, 424 So also concerned A third 2d life-support permanently minor the removal systems. comatose from case, however, inapposite it because That case is to this allowing primarily involved the construction of a Louisiana statute under circum- discontinuation of certain stances. In re Opinion of the Court *9 Barry court rejected request the state’s that judicial required review be life-support before methods be may withheld from a minor who is not brain dead: here, [W]here, question as young the concerns a
child, qualify tions to discontinue parents we do not think the always must legal guardians as judicial and seek sanc- extraordinary these measures. parents A decision by supported by competent medical advice . . . ordinarily should be sufficient course, approval. without court diagnosis Of always should be by physi- confirmed at least two cians. We must remember that the conscience society in something these relegated matters is not to the jurisdiction exclusive the court.
Although judicial intervention need not be solic- course, ited as a matter of still the courts must always open be to hear request these matters on family, guardian, the personnel, affected medical exists, or the state. In cases where doubt or there among is a lack of and the desires a available to consider nel made family, concurrence physicians, hospital, or if an party simply affected order, judicial then the court must be person- the matter. Medical hospitals may and well suggestion consider the by Dr. Solomon in testimony his that an advisory committee should be available to assist physicians families and in these matters. So [445 2d 372.] LHR, In parents of an in infant an irreversible chronic vegetative sought state remove life-support child, from systems and the hospital treating sought the child a declara- tory judgment regarding whether ac- could tivity Supreme terminated. The Court of Georgia could, concluded it stating: that
We conclude to refuse treatment or indeed to terminate treatment be exercised Opinion op the Court guardian the infant after parents legal by ill with no terminally diagnosis the infant the infant exists in recovery hope of possi- reasonable vegetative state with no chronic attaining The above cognitive function. bility prognosis must be made diagnosis and attending physician. Two no inter-
physicians with
the case must concur in
outcome of
est
judicial
Although prior
diagnosis
prognosis.
remain
required,
the courts
avail-
approval
is not
disagreement
between
able
the event of
abuse,'
suspected
or other
parties, any case of
appropriate instances.
hospital
us no
ethics
In the narrow case before
way
This
no
need be consulted.
committee
if this is the
use of
a committee
forecloses
such
hospital,
family.
physician
Once
choice of
the
*10
terminally
diagnosis
the infant
is
is made
hope
recovery
in a chronic
ill with no
and
attaining
vegetative
possibility
with no
state
function,
compelling
no
cognitive
the state has
forego
to
maintaining life.
decision
interest
is,
point,
this
at
or terminate
measures
dying process
the
will not
simply a decision that
state has an
artificially extended. While the
life,
prolongation of
the state has
interest
no
though
in the
al-
prolongation
dying,
in the
and
interest
a
decision to be
there is moral and ethical
process,
the
that decision can be
made to end
made
surrogate of
infant. Since
only by
the
the
guardians
in-
parents are
natural
of the
the
fant,
the
guardian
parénts
legal
where there are
no
guardian
appointed.
no
ad litem need be
and
We
the decision whether
to end
conclude
dying process
personal
family
the
a
decision
legal responsibility
members or those who bear
patient.
for the
We
not consider this conclusion
do
responsibility
judiciary.
the
an abdication of
always
protect
available to
While the courts are
the
individual,
rights
this
the
the condition of
of
is such that
is one to be
individual
decision
family
community.
made
and the
by medical
noted,
previously
open
remain
As
courts
In re Opinion op the Court
disagreement
if
assist
there is
between decision
question
[253
446-447.]
makers or
of abuse.
Ga
Meisel,
8;
See also
chs
and Guidelines for
Making, supra, pp
State Court Decision
101-122.
Superintendent
But see
of Belchertown State
Saikewicz,
School v
373 Mass
E
patient
competent adult
the decision
While
life-sustaining
regarding
measures
the cessation
patient’s
generally
care, a differ-
will
control
surrogate
guide
necessarily
the
must
ent standard
parent
incompetent patient,
including
the
of an
incompetent
child, where the
immature minor
an
or
expressed
Two
his wishes.
the minor has never
surrogates
to
have evolved
basic standards
to
withhold consent
to withdraw or
decide whether
judg-
life-sustaining treatment:
the "substituted
standard.7
"best interests”
ment” standard
generally,
for State Court Decision
Guidelines
See
supra,
Making,
pp 72-78; Meisel,
9.
ch
judgment standard,
Under
substituted
incompetent
patient’s
surrogate
exercising an
forego
rights
life-sustaining
must make the decision whether
of what the
treatment on
basis
patient
patient
been
have decided had the
would
parameters
supra, p
Meisel,
278. The
so.
able to do
concisely
set forth
of the
Conroy,
were
standard
(1985):
321, 365;
the may still be able derive from life. limited-objective permits This nation of standard termi- the patient for a who had not unequivocally expressed his becom- desires before ing incompetent, it when is clear that treat- question ment tient’s merely pa- would prolong the suffering.
Under the proper pa- circumstances—where tient was competent formerly is a minor of mature judgment—the judgment substituted stan- test. See Guidelines for dard is an appropriate Making, supra, State Court Decision pp 72-83. However, as applied to immature minors other never-competent patients, the substituted judgment standard is it inappropriate because can- not be ascertained patient what choice the would supra, Meisel, have if made competent. 275. p See Guardianship Barry, supra, also In re pp 370- supra, LHR, In re p 444; Rasmussen v Flem- ing, 154 Ariz 207; 741 P2d 674 We there- that, fore patient conclude where the has never competent, been decision-making test bet- ter guides surrogate is the best stan- interests dard. The best interests standard was summarized Grant, as follows: will many
There be situations where it cannot ascertained what choice would cases, competent. make if guardian such good-faith must make a determination of whether withholding sustaining life treatment would 195 Opinion Court interests. incompetent patient’s best serve list the factors which following is a nonexclusive making this determina- be considered should tion: present level patient’s about [E]vidence *13 emotional, cognitive func- sensory, and physical, tioning; resulting from pain degree physical of condition, treatment, and termination the medical of the iation, degree treatment, humil- respectively; of dignity probably loss of dependence, and treatment; resulting and from condition recovery with expectancy prognosis and life op- treatment; various
and without
tions;
effects,
risks,
and benefits
side
and
options.
each of those
(Handler,
J.
The court this appropriate standard standard as an best interests deciding to remove to use whether systems for Joelle.
hi suggested Respondent has determina- seq.; act, et MSA MCL 333.1021 tion death 14.15(1021) seq., precludes the removal et patient’s patient life-support apparatus until after determined to be brain dead. We
has been
agree
conclusion,
the trial court’s
that "the
with
question:
only
one
is the
statute
addresses
life-support may
dead, so
be disconnected
liability?”
without fear of
provides:
The determination of death act
if
an-
person
A
will be considered dead
in the
physician,
ordinary
on
opinion
nounced
a
based
community,
practice
in the
standards
medical
spontaneous
there is the irreversible cessation
Opinion of the Court
respiratory
circulatory functions. If artificial
support
determination
preclude
means of
ceased,
person
these functions have
sidered dead
bewill
con-
if in
opinion
the announced
aof
physician,
ordinary
on
based
standards medical
practice in the community, there is the irrevers-
spontaneous
ible cessation of
brain functions.
will have
Death
relevant
occurred at the time when the
333.1021;
functions ceased.
MSA
[MCL
14.15(1021).]
pronounced
Death
before artificial
supporting respiratory
means of
functions are terminated.
circulatory
333.1022;
MSA
[MCL
14.15(1022).]
of determining
means
death in section 1
state,
purposes
shall be used for all
in this
includ-
ing the trials of civil and criminal cases. [MCL
14.15(1023).]
MSA
,333.1023;
Courts
look
legislative
to the
an
history of
act, as well
the time during
as
which the act was
*14
passed,
to ascertain the reason for the act and the
Hall,
v
meaning
provisions.
of its
People
Mich
(1974).
175, 191;
intended apparatus declared brain has been until a dead.
iv suggested Respondent that the termina- has also life-support should treatment Joelle tion of petitioners subject to criminal doctors Joelle’s liability for homicide. conclusion that
No court has reached the
life-sustaining
withholding
mea-
or withdrawal
ground
imposition of crimi-
sures should be
nal
supra, pp
liability. Meisel,
57-58;
Homi-
anno:
supports
Physician’s
from
of life
withdrawal
cide:
patient, 47
18. See also Uniform
ALR4th
comatose
10(a),
Rights
Terminally
Act, §
9B ULA
of the
to
609,
in this case declined
620. The trial court
agree.
impose
liability, and we
criminal
corpus
con-
The
delicti
a felonious homicide
existence
criminal
of a
and the
sists
death
People
agency
Mondich,
as its cause.
v
593-594;
Affirmed.
Jansen, J., concurred.
Sawyer, J. (concurring in part and dissenting part). I agree While Judge Kuhn properly allowed removal of the life-support system in the bar, case I at cannot agree with the majority’s formulation guidelines to govern future cases of this nature.
It is a well-settled principle of constitutional law government is divided into three branches: legislative, executive, 1963, judicial. Const Int’l Union v 3, 2; art Michigan, Mich App § — — (1992). 489, 499; NW2d Michigan Consti- provides tution person that no exercising pow- ers of one branch shall powers exercise properly belonging others, to one of the except expressly as 1963, provided. Const art 2. I believe that § majority’s pronouncement guidelines addressing cases beyond the one at bar is dangerously close to a usurpation of powers properly belonging to the Legislature. I Accordingly, would limit holding our in this case to the decision as it affects Joelle Rosebush.
Courts
in foreign jurisdictions
have recognized
the unique policy and
implications
societal
of re-
moving the life-support
system
person
in a
persistant
state. See In re
vegetative
Conroy,
321;
NJ
Storar,
(1985);
A2d 1209
NY2d
way in to insure order to the constituency served. of the are the interests recognized Similarly, that where this Court has Id. public policy issue, inter- are at moral and matters forgo appellate judges their desire mediate should legislative pro- in law favor of to create new Bartolo, 35, 58; 412 162 Mich cess. Proffitt v (1987) (evaluation wrongful birth NW2d claims). life large presents a
I that this case task too believe scope important to for this Court in effect guidelines activ- dictate future establish ity will Perhaps best ex- in this Justice area. Potter separation powers plained in In re doctrine (1940), Fowarding Co, 57; 292 294 Mich NW he when stated: legislative and
There is a distinction between Legislature The makes the law— judicial acts. To is an apply courts it. enact laws exercise is legislative power; interpret them an exercise judicial To shall be power. declare what law legislative; it is or has been is to declare what legislative prescribes rules of judicial. power The whether, power judicial determines action. The case, particular of action have been such rules transgressed. legislature for prescribes rules rights. existing judiciary future. The ascertains (quoting [Forwarding, supra at 63 from Justice Application dissent of Consoli- Potter’s Co, Freight dated NW (1933).] agree majority’s recognition I with
While the parental right medical treatment refuse incompetent prescribe child, I rules an hesitate pub- important future cases concern such policy lic and societal concerns.