Rasmussen by Mitchell v. Fleming

when, unknown, “surrogate sumption upon consideration of all of decision- ment is factors, stan- it would be in the ward’s “best maker use the best interests should to withdraw or withhold medical promote that will interests” dard and choose a course proba- treatment. well-being as it would patient’s person in bly by conceived a reasonable guardian argues that “substi patient’s President’s circumstances.” appropriate judgment” tuted is also the Study Ethical Commission For The Of involving persons standard to use in cases And Problems In Medicine And Biomedical competent. have never been We dis who Research, Deciding Forego Behavioral cases, agree. In those there is no evidence Treatment, (1983). Life-Sustaining p. guardian may from which a substitute his Court, also, Superior Barber v. judgment he the ward for what believes Cal.Rptr. Cal.App.3d have done under the circumstances would mind, With this standard only he use the best interests can following out- should consider the factors standard. The President’s Commission For by Washington Supreme lined Court Study Of Ethical Problems Medicine Guardianship Ingram, supra, 689 P.2d And Behavioral And Biomedical Research making when medical treatment stated, agree, and we that: in- decisions for a ward. This list is not judgment “The substituted standard tended to be exhaustive but would include: requires surrogate attempt that a prognosis if she chose no ward’s “[T]he incapacitated reach the decision that the treatment; prognosis if she chose person if he would make or she were * ** another; one treatment over the risk of able to choose. The substituted proposed adverse side effects from the judgment can standard be used treatments; severity the intrusiveness or capable developing was once treatments; proposed ability of the hand; relevant to the views matter cooperate of the ward to and assist with further, must be reliable evidence there post-treatment therapy; the ward’s reli- of those views.” President’s Commis- gious' regarding or moral views sion, supra, at 132-133. dying process; care or and the Affirmed as modified. friends, wishes of if those wishes would influence the ward’s deci- HATHAWAY, C.J. sion.” FERNANDEZ, J., concur. emphasize always

We that it is not in the require

best interest to submission to treat-

ment. indicating

“Nor do statistical factors majority competent persons

that a similarly situated choose treatment re- P.2d significant solve issue. The by Douglas P. Mildred RASMUSSEN complex of life are more than statistical MITCHELL, her Guardian determinations. Individual choice is de- Litem, Appellant, majority termined not the vote of the complexities singular but of the FLEMING, County Public Pima Robert unique per- situation viewed from the Fiduciary, Mildred as Guardian spective[s] personfs] called on to Rasmussen, Appellee. Superintendent make the decision.” Saikewicz, Belchertown State School v. No. CV-86-0450-PR. supra, 370 N.E.2d at 428. Arizona, Supreme Court this, In a case such as where there is no En Banc. patient’s evidence what wishes July might regard be with to withdrawal of treatment, begin pre- we with the sumption that she would It is want live. however,

possible, pre- to overcome this

U.S., the Ass’n for Retarded Citizens Arizona, League Intern. of Socie- Handicap. for Persons with ties Mental Interest Law of Philadel- Public Center Pa., phia by Laski, Philadelphia, J. Frank curiae The for amicus Ass’n for Persons Handicaps. with Severe Mitchell, Douglas Tucson, appel- P. for lant. Fleming, County B. Pima

Robert Former McMillan, Fiduciary, Pima Kate Public Penning- County Fiduciary, Alyce Public Tucson, ton, appellee. Die, Right

Society for the Inc. Rouse, City, Fenella New York for amicus Die, Society Right Inc. curiae Theut, Phoenix, Legal Mark J. National Medically Dependent for the Center Jr., by Bopp, Thomas J. Disabled James Nimz, Marzen, Balch, Mary M. Thomas J. Ind., for Indianapolis, amicus curiae Bd. Handicapped Fed- Directors of the United eration.

GORDON, Chief Justice. long ago the of life and death Not realms by bright line. Now this were delineated in by advances line is blurred wondrous re- technology—advances that until medical by only conceivable years cent were ideas as Jules such science-fiction visionaries technology Wells. Medical Verne and H.G. twilight zone of effectively created a has com- suspended animation where death life, form, continues. while some mences however, part of a patients, want no Some technology. by medical life sustained medical Instead, they prefer plan of its allows to take that nature digni- permits them to die with course ty. Phoenix, Jakubczyk, Americans John J. right to individuals their As more assert Legal Fund Life Defense

United for treatment, frequently more medical refuse Grant, Forsythe, Chi- R. Clarke D. Edward law, medicine, philoso- disciplines of do the 111., Americans cago, for amicus curiae This technology, religion collide. phy, Legal Fund. for Life Defense United many raises interplay interdisciplinary pro- single person Office, Mary- questions to which University of Law Clinical Thus, ap- Herr, we has all the answers. land, by Stanley fession of Law S. School involv- impression Professor, Matthews, proach Law this case first Gisele Associate Md., Baltimore, to refuse Student, ing curiae for amici mindful humility, caution and extreme for Ass’n Retarded Citizens provide only overwhelming personnel to basic comfort sense of profound of the diseases, pneumonia, such as power care. Certain accompanies the responsibility that infections, urinary gangrene, and tract future in this and similar to resolve what Al- to run their natural course. were all too often treatment cases are siblings did not take though Rasmussen’s life-and-death issues. of Ras- an active role the determination treatment, they expressed a mussen’s will- FACTS ingness place the decision to to abide to the Mildred Rasmussen was admitted DNR and DNH orders on Rasmussen’s Nursing in Tucson in Del Home Posada Sol guardian medical chart. The ad litem ob- age Before her admis- 1979 at the of 64. appointment of the jected to the Public life, independent led for- sion she had an Fiduciary there unless was chiropractor. After merly practicing as a affirmative order that the remove admission, physical and men- Rasmussen’s DNH from the medi- the DNR and orders point to the conditions deteriorated tal chart. cal she received fluids and nourishment where Douthitt, investigator a case Debra nasogastric through a tube. Fiduciary, County Pima Public testified Fiduciary com County Pima Public occasionally although Rasmussen County Supe proceeding in Pima menced a touched, upon being she opened eyes her appointed as May 1985 to be rior Court visually respond to could not track or consenting purpose guardian for the commands. Douthitt also testi- Douthitt’s nasogastric tube.1 removal thought still fied that nurses Rasmussen court, acting pursuant to A.R.S. § cognitive functioning some be- retained as.counsel appointed ad litem throaty Rasmussen would make cause Rasmussen, physician to examine for a nasogas- spew the sounds or mucus when Rasmussen, Ras and a “visitor”2 to visit reinserted. was removed and tric tube immediate mussen. Rasmussen’s Peterson, Rasmussen’s advocate- Lynn Iowa, members, residing in siblings three friend, re- that Rasmussen would testified proceed guardianship notified of were questions or other stimuli spond to certain ings. making humming or by moving eyes her proceed- Testimony guardianship Peterson believed that grunting noises. that Rasmussen had suf- ings indicated ability to think but had the Rasmussen still suffering and was from fered three strokes thoughts. express her simply not could degenerative neural muscular disease a Cox, long- director of Stephen syndrome. organic brain She and/or an Department division of the term care herself and re- unable to care for was of Pima Coun- Aging and Medical Services position. Sol, Nurses in bed in a fetal and mained Posada Del ty, director at care and medication. testified physician, administered basic former Rasmussen’s considering diagnosis Rasmussen’s had been in a nonverbal After Rasmussen physician treating vegetative her had state since prognosis, essentially and to elicit a a “do not resuscitate” been able placed on her chart Dr. Cox had never indicate a (DNR) hospitalize” that would response and a “do not to stimulus order response. In for the (DNH) cognitive DNR order directed basis order. The real in a chronic opinion, if she Rasmussen existed not be resuscitated that Rasmussen she had a zero vegetative state from which similar condi- cardiac arrest or a suffered higher returning to a level probability of permitted medical The DNH order tion. law, person reason, trained in physician visitor is ... a re- 2. “[A] Rasmussen’s 1. For some officer, nasogastric petition em- nursing for and is an tube after or social work moved surprised desig- guardianship filed and was special appointee was of the court ployee or swallow food on that Rasmussen could learn investigator personal with no a court nated as however, staff, nursing still had own. The her proceedings." § A.R.S. interest in the place mouth. The the food into Rasmussen's (Supp.1986). whether the tube was record does not indicate ever reinserted. Masland, great importance court-ap- presented here are of functioning. William families, guardians, legal practitioners, that Rasmus- doc- pointed neurologist, testified vegetative tors, nursing state staff profound hospitals sen in a home who existed basis____” Ac- daily from would never recover. which she similar on a face situations Masland, cording Rasmussen was to Dr. Fleming, Rasmussen 154 Ariz. parts of all her brain brain-dead because (App.1986). 741 P.2d cognitive necessary any func- sort (1) court then held: the Medical Treatment self-awareness, tion, perception sur- case; inapplicable Act this Decision was roundings longer Masland functioned. (2) right to refuse medical treatment is response not stimulus did also stated that upon federal and state constitu- based cognitive perception. necessarily indicate (3) no right privacy; state inter- tional respons- opinion, the stimulus Masland’s counterbalance Ras- ests were sufficient to suggested during testimony earlier were es (4) either a privacy; mussen’s fam- primitive no more than reflexive move- guardian could assert ily member or a Ras- ments. mussen’s refuse medical treat- ment; (5) future two-day evidentiary hearing, in this and cases After the findings incompetent patient trial in its of fact con has never where desires, cluded had existed in a expressed that Rasmussen her medical May vegetative chronic state since 1983 concerning patient’s medical treatment regarding and that Rasmussen’s wishes guided by the “best are to be interests” present her care could be determined also enunciated cer- standard. The court presented. As a from matter of evidence procedural safeguards to follow in sim- tain law, the court concluded that Rasmus trial types determining which ilar cases when incapacitated statutorily de sen was can for individuals persons make decisions fined; incapacitated per of an incapable making decisions. authority son has the to exercise the litem’s granted peti- We care; proper ward’s to refuse pursu- jurisdiction tion for and have review method to determine the Const, 6, 5(3), and ant to Ariz. art. Rule refusing appropriateness of care for the (1986 17A A.R.S. Ariz.R.Civ.App.Proc., judgment” ap ward the “substituted Supp.). guardian’s proach whereby the decisions acts, guided by prior are the ward’s writ MOOTNESS ings, concerning and statements medical controversy particular became This care; guardian apply is unable to We have dis moot when Rasmussen died. approach, judgment” his “substituted then cretion, however, questions to decide which guided by decisions should be the ward’s v. have moot. State Valenzue become See interests”; guardian’s and the “best deci 732, 44, la, 43, P.2d 144 695 733 Ariz. subject sion to care for a ward withhold Commission, (1985); Miceli v. Industrial ap to court The trial court review. then 30, (1983). 71, 73, 32 Ariz. 659 P.2d 135 Fiduciary as pointed the Public Rasmus sen’s without restriction. issues under The and difficult novel physi proceeding transcend the lying this appealed The ad litem the trial Rasmussen and problems cal that afflicted appoint court’s decision to underlying perish her. The did not with Before the of without restriction. importance public significant are of decision, issues appeals rendered its Rasmussen likely capable repetition but are of following and are complications pneumo- from died review, when review full even nia. nevertheless to evade The court retained expedited. issues matter for decision because “[t]he drugs, age, chronic intoxi- "incapacitated per- of chronic use

3. A.R.S. 14-5101 defines § cause, minority, except to the or son" as cation other understanding or he extent lacks sufficient any person impaired of who reason responsible illness, capacity deficiency, to or communicate make mental mental dis- mental order, concerning person. disability, physical or illness advanced 214 rely ing jurisdictions have declined to from a “terminal condition” as defined

Other party physicians on the real in interest the death of above because her were not ad life-sustaining ministering any procedures and the mootness doctrine to resolv avoid ing issues raised medical treatment without she would have died.5 which footsteps in their cases.4 We follow B. Right Federal Constitutional jurisdiction to exercise our confront reach the merits of this case. issues and The U.S. Constitution does not ex pressly privacy right or a priva mention of REFUSE TO MEDICAL RIGHT Nevertheless, cy. [Supreme] “the Court TREATMENT right recognized personal has that a of address whether Rasmussen We first privacy, guarantee of or a certain areas or constitutional, statutory, had a or common- privacy, zones exist of does under the Con right law to refuse treatment. Wade, 152, stitution.” Roe v. 113, 410 U.S. 726, (1973). 705, L.Ed.2d 93 S.Ct. 35 147 Right A. Statutory privacy This emanates from the penumbra specific guarantees particu legislature the Arizona en 1985 Id. lar to the Constitution. amendments Act acted the Medical Treatment Decision Although parameters of the (MTDA). -3210. A.R.S. 36-3201 to §§ defined, privacy clearly never have been “A person provides: may The exe MTDA guarantee “personal rights found in this directing withholding cute a declaration personal privacy must be limited to those procedures life-sustaining withdrawal ‘implicit in the which are ‘fundamental’ 36- a terminal condition.” A.R.S. § ” Paul v. concept liberty.’ ordered 3202(A). “Terminal condition” is defined Davis, 713, 1155, 693, U.S. S.Ct. incurable or condition “an irreversible (1976). relat 47 L.Ed.2d Matters which, attending opinion from in the ing marriage, procreation, contraception, physician, death will occur without the use family relationships, rearing and child life-sustaining procedures.” A.R.S. generally have been encom education 36-3201(6). right.6 Id.; ac passed penumbral by this provide MTDA did not Rasmussen 57, 60, Murphy, Ariz. cord State v. statutory right refuse P.2d First, two reasons. Rasmus- treatment for Supreme yet Court has required sen executed the declara- never Second, privacy encompasses hold tion. Rasmussen was not suffer- that the Farrell, See, e.g., N.J.Super. e.g., Carey Population 6. v. Services Interna Matter (1986), tional, affirmed, A.2d 1342 108 N.J. S.Ct. 52 L.Ed.2d 431 U.S. (N.J.1987); Conroy, education); A.2d 404 Matter (1977) (child rearing Roe 321, (1985); Bartling Supe A.2d 1209 v. 705, N.J. 486 Wade, 113, S.Ct. 35 L.Ed.2d 147 410 U.S. 93 186, Court, Cal.App.3d Cal.Rptr. 220 rior 163 209 Baird, (1973) (abortion); v. U.S. Eisenstadt 405 (1984); Kennedy Hospital, John F. Inc. Memorial 438, 1029, (1972) (con L.Ed.2d 349 92 S.Ct. 31 Bludworth, (Fla. 1984); 452 So.2d 921 In re v. 557, traception); Georgia, Stanley 394 U.S. 89 v. L.H.R., 439, (1984); Ga. 321 S.E.2d Mat 253 716 1243, (1969) (possession of 542 S.Ct. 32 L.Ed.2d Hamlin, Guardianship ter 102 Wash.2d of of home); Loving v. Vir obscene material in own 810, (1984); Dillon, P.2d 1372 v. 73 689 Eichner 1817, 1, ginia, S.Ct. 18 L.Ed.2d 1010 388 U.S. 87 431, (N.Y.App.Div. A.D.2d 426 N.Y.S.2d 517 Massachusetts, (1967) (marriage); v. 321 Prince nom., 1980), grounds on other sub Mat modified 438, (fami 158, (1944) L.Ed. 645 U.S. 64 S.Ct. 88 363, 64, Storar, ter denied, 52 N.Y.2d 420 N.E.2d cert. of ly relationships); ex rel. Skinner v. Oklahoma Storar, 858, 454 Storar v. U.S. 102 S.Ct. 535, 1110, Williamson, L.Ed. U.S. 62 S.Ct. 86 316 309, (1981); Superintendent L.Ed.2d 153 70 (1942) (procreation). But see Bowers v. 1655 Saikewicz, State School v. 373 Belchertown - -, 2841, Hardwick, 106 S.Ct. 92 U.S. 728, (1977). N.E.2d 417 Mass. 370 (1986) (right privacy to does not L.Ed.2d 140 not 5. the record does indicate that Ras- Because right engage encompass in homosexual sod to nasogas- physicians ever mussen’s reinserted home); omy Murphy, v. Ariz. State 117 in own death, prior express to her tric tube we 57, (federal (1977) constitutional 570 P.2d 1070 opinion nasogastric whether insertion a on encompass right right privacy not to to does places a in a "terminal condition” tube home). possess ingest marijuana in own or statutorily as defined.

215 Right privacy 8. to right to refuse medical treatment.7 § Nevertheless, state courts have person numerous 8. No shall be dis- Section affairs, private in his or his home turbed Supreme from Court decisions reasoned invaded, authority without of law. enough right privacy is to that the to broad right to chart his grant an individual 2, Although Arizona Constitution article We plan.8 own medical her most often in a 8 has been invoked agree right context, our states. The to sister Fourth Amendment we see no rea- interpret personal “privacy” “private son to refuse medical a not encompassing an affairs” individual’s sufficiently “implic right “fundamental” or right to refuse medical treatment. An indi- concept liberty” of ordered to fall it right plan to chart his or her vidual’s own protected constitutionally zone within much, treatment deserves as Supreme privacy contemplated more, constitutionally-protected privacy Court.9 home or than does individual’s automo- bile. Right State Constitutional C. Right D. Common-Law state have held that

Some courts right refuse a long recog medical treatment is also The common law has right.10 right an individual’s to be free from state constitutional We hold nized century bodily Nearly ago invasion. provides the Arizona Constitution also Supreme Court noted: refuse right treatment. sacred, or No is held more is more constitution,

Unlike the federal law, carefully guarded, by the common expressly provides for Arizona Constitution every individual than the 2 privacy. Article of the Arizona person, of his own possession control provides: from all or interference of Constitution free restraint Bolton, 179, 213, sufficiently present Doe U.S. nexus 7. But see v. 410 93 when "there is a close 739, 758, (1973) (Douglas, challenged S.Ct. L.Ed.2d 201 35 between the State and the action of J., concurring) one’s regulated entity care so that the action of the CfTJhe freedom person" constitutionally protect- health may fairly latter treated as that the State ed.) (emphasis original). Co., Metropolitan v. Edison itself." Jackson 419 453, 345, 351, 449, 42 477 U.S. 95 S.Ct. L.Ed.2d Court, e.g., Superior Cal. Bouvia v. authority believe state’s We that the 1127, (1986); App.3d Cal.Rptr. Brophy medical, regulate hospital, dental license and Inc., England Hospital, v. New Sinai 398 Mass. (A.R.S. optometric corporations service 417, Farrell, (1986); N.E.2d N.J.Su seq.), et health care institutions §§ 20-821 1342; per. Foody 514 A.2d at v. Manches (A.R.S. physicians, seq.), 36-401 et sur §§ Hospital, Conn.Sup. ter Memorial (A.R.S. seq., geons, and nurses 32-1401 et §§ (1984); Colyer, A.2d 713 Matter of Welfare of supervi et seq., etseq.), and its 32-1601 32-1821 (1983); v. Wash.2d 660 P.2d 738 Severns incapac sory authority guardianship over Center, Inc., Wilmington Medical 421 A.2d 1334 (A.R.S. seq.) et are persons §§ itated (Del.1980); Spring, Matter 380 Mass. together are sufficient to es that taken factors (1980); N.E.2d 115 Leach v. Akron General Colyer, 99 tablish state action herein. Center, Misc. Medical 68 Ohio 426 N.E.2d 742; Eichner, 660 P.2d Wash.2d Perlmutter, (Fla. (1980); 362 So.2d 160 Satz 460, 426 at 540. A.D.2d at N.Y.S.2d (Fla. Dist.Ct.App.1978), affirmed, 379 So.2d 359 1980); Superintendent State Belchertown of right to re which held that 10. States have 728, Saikewicz, v. 373 Mass. 370 N.E.2d School a and treatment is both federal fuse medical 10, Quinlan, (1977); 70 355 417 Matter N.J. of right include California state constitutional 647, nom., Garger New cert. denied sub v. A.2d 1137, (Bouvia, Cal.Rptr. Cal.App.3d 225 at 179 at 319, 922, Jersey, 289 429 U.S. 97 S.Ct. 50 L.Ed.2d (In 301), Guardianship Barry, 445 re Florida (1976). (Fla.Dist.Ct.App.1984) (noting state 365 So.2d recog was amended after to constitution Satz successfully can his or An individual assert 9. encompassed right privacy to nize that against right privacy only to her constitutional treatment)), Jersey affecting New against governmental a and not acts of acts 39, 663), (Quinlan, A.2d at and 70 N.J. at 355 private defendant unless "state action" exists. 120, Bradstreet, Inc., Washington (Colyer, at 660 Wash.2d 99 v. 768 F.2d See Polin Dun & 742). 1204, (10th Cir.1985). is 1207 "State action” P.2d at 216

others, by unquestiona- receiving clear and necessary unless after all information to authority decision, ble of law: patient an informed make only forced to choose from alternative Railway Botsford, Union Co. v. Pacific precluded methods of treatment and from 250, 251, 1000, 1001, 141 11 U.S. S.Ct. 35 foregoing all treatment whatsoever. We (1891). Judge Cardozo, 734 during L.Ed. hold that the doctrine of informed con tenure as a member of New York’s sent—a doctrine borne of the common-law highest succinctly captured the tribunal, right physi to be free from nonconsensual spirit Supreme language Court’s invasions—permits cal an individual to re when he wrote: fuse medical treatment.11 Every being years human and adult right sound mind has a determine STATE INTERESTS body;

what shall be done with his own surgeon performs opera- and a who emanating Whether from constitutional patient’s tion without his consent com- penumbras premised on common-law assault, mits an for which in he is liable doctrine, right to refuse medical treat damages. ment is not absolute. Courts have held right may that the be limited the state’s Society New York Hos Schloendorff life, preserving safeguarding interest 125, 129-30, 105 92, pital, 211 N.Y. N.E. 93 integrity pre profession, of medical (1914). suicide, venting protecting innocent right Protection this common-law parties.12 third bodily free from nonconsensual inva- at sions is the heart of is known what Preserving A. life today as the doctrine informed consent. doctrine, preserving this The state’s interest

Under significant life is the most interest asserted patient capacity must have the 348, Conroy, the state. 98 N.J. at 486 judgments, reason and make the decision 1223; 121, at Colyer, A.2d at 99 Wash.2d voluntarily must be made without Mass, 743; Saikewicz, 660 P.2d at 373 at coercion, a and the must have 740, N.E.2d at It embraces the 370 425. understanding clear of the risks and ben- separate preserving related but concerns proposed efits treatment alterna- well particular the life of a individual as nontreatment, along tives or a full sanctity preserving Conroy, of all life. understanding of the dis- nature of the 348, 98 486 at 1223. N.J. at A.2d prognosis. ease Wanzer, al., Physician’s Responsi et Although the interest state’s Patients, bility Hopelessly Ill 310 Toward justifiably strong, preserving life is we be 955, Eng.J.Med. New 957 Con necessarily Cf. interest weakens and lieve this 346, 1222; roy, 98 at 486 A.2d at N.J. patient’s yield to the interest where must 121, 99 Colyer, Wash.2d at 660 P.2d at 743. prolong at issue “serves purpose underlying with an incurable condition.” doctrine life inflicted 122, if, 660 P.2d at informed consent is defeated 99 Wash.2d at Colyer, somewhat Storar, statutory right); N.Y.2d at 420 11. Other courts also have held that the (whether right refuse treatment is both a constitution refuse medical N.E.2d at See, right. e.g., al common-law guaranteed by Constitution Mass, 633; Brophy, Farrell, at 497 N.E.2d at holding premised "disputed question”; its 1344; N.J.Super. at 514 A.2d at principles"). on "common-law 130-34, Foody, Conn.Sup. at 482 A.2d at 717- 18; 119-22, Colyer, at P.2d at 99 Wash.2d Conroy, A.2d e.g., at at 12. 98 N.J. Conroy, N.J. at A.2d at 741- Cf. 1223; Foody, Conn.Sup. 482 A.2d (court recognized constitutional but 718; Bartling, Cal.App.3d 209 Cal. application holding its limited of common- 122, 225; Colyer, Rptr. at 660 at 99 Wash.2d Torres, right); Conservatorship law Matter of 8, 743; Leach, at Misc. 426 P.2d at N,E.2d 68 Ohio (Minn.1984) (court N.W.2d 357 ognized 339-40 rec 162; 814; Satz, at Saikew at 362 So.2d constitutional common-law Mass, icz, 425. at N.E.2d at premised holding but on its constitutional other, The chance flicts with the the choice of the is the case here. 743.13 Such legal representa- patient, or his or any medical treatment would have that patient incompetent to act in tive if the her chronic brought out of Rasmussen behalf, prevail. In the his own should cog returned her to a vegetative state and patient’s absence of the choice or an au- minimal, if not nonexistent. nitive state was must act in proxy, physician thorized the resuscitation have Hospitalization or would patient. interest of the best death rather only postponed Rasmussen’s reasons, improved her life. con- than have For humane with informed sent, physician may medical- do what is observations, we decline Based on these ly necessary pain, or to alleviate severe preserv- the state’s interest in to hold that permit a ter- cease or omit treatment ing outweighed life Rasmussen’s patient ill is immi- minally whose death refuse medical treatment. However, nent to die. he should not deciding intentionally cause death. In Safeguarding integrity B. potentially the administration of whether profession in life-prolonging medical treatment preserving The state’s interest patient the best interest of the who integrity profes the ethical of the medical behalf, incompetent to act in his own readily apparent not here. No mem sion is physician pos- determine should what community opposed the ber of the medical sibility extending life hu- is for under in this case. medical treatment decisions conditions and mane and comfortable fact, physician In who it was Rasmussen’s prior expressed what are the wishes on her placed the DNR and DNH orders family or patient and attitudes of the Thus, chart. no real conflict existed be responsibility the cus- those who have for profes patient tween the and the medical tody patient. impugn ethical sion that would the latter’s is not imminent but a Even death Farrell, See integrity. NJ.Super. at beyond irre- patient’s coma is doubt 300, 514 A.2d at 1345. adequate versible and there are safe- existed, Even if a conflict had how accuracy guards to confirm ever, we would have hesitated to find that diagnosis and with the concurrence of yield Rasmussen’s interest must to the responsibility those who have profession state’s interest. The medical it patient, it is not unethical care of recognizes longer self now that it is no pro- all means to discontinue of life obligated provide medical treatment longing medical treatment. all situations. The American Medical Asso in prolonging Life ciation, through its Council on Ethical and artificially or tech medication and cludes. Affairs, following state Judicial issued the nutrition nologically supplied respiration, ment dated March 1986: treating terminally ill hydration. or patient, phy irreversibly comatose Withholding Withdrawing Life whether ben sician should determine Prolonging Medical Treatment outweigh its burdens. efits of treatment times, dignity of the physician The social commitment of the At all (Emphasis adde suffering. life maintained. is to sustain and relieve should be d).14 performance duty con- Where the one Mass, Saikewicz, 740-43, degree bodily grows privacy as the at dims.’’). (‘There prognosis at is a substantial distinc increases and N.E.2d invasion human life tion in the State's insistence that be Mass, Saikewicz, curable, 14. See also opposed where the affliction is as saved 426-27; where, here, Cal.App.3d Bartling, 163 N.E.2d at interest the issue is to the State 225; Storar, whether, when, Cal.Rptr. N.Y.2d at long, and at but how J„ (Jones, may N.E.2d at 75-76 n. 3 that life 373 n. what cost to the individual Quinlan, (recent surveys suggest extended.”); dissenting part) briefly 70 N.J. at approve (“We physicians majority practicing now interest A.2d at 664 think that the State’s being it is preserving passive and believe that weakens and the individual’s euthanasia life] [in

218 Although held that MTDA is language suggests that we have emphasized case, illogi it questioned inapplicable if a this would be would not be medical ethics placed suggest on the cal to that the state’s inter DNR or DNH order were indeed disap patient suffering magically from an irre preventing chart of a est in suicide in a pears only was not when individual ter versible coma. Rasmussen becomes coma, chron completes paper she was in an irreversible ill and minally but certain any to Perhaps We fail see vegetative ic state. in some cases the state’s work. significance the two preventing material between suicide limit an interest will Therefore, the above his physical ability conditions.15 to assert or her individual’s e.g., In AMA us to statement issued leads to treatment. refuse medical Caulk, bring 226, (1984) into re this case does not 480 believe that 125 N.H. A.2d 93 integrity (state of the medi disrepute prisoner the ethical who was could force-feed profession. starving pre cal himself to death because he imprisonment). to This ferred death life Preventing C. suicide a case.16 not such Asserting right to refuse medi Protecting parties D. innocent third cal is not tantamount to commit “Refusing medical ting interven suicide. forego Rasmussen’s decision to merely disease to take its tion allows the di adversely or medical treatment will course; eventually to were natural death health, safety, security rectly affect the or result, primarily, of occur, be it would children, no and of Rasmussen had others. disease, and not the result underlying siblings, family, three her immediate injury.” Conroy, N.J. 98 of self-inflicted agreed to in another state had resided Foody, also 351, A.2d at 1224. at 486 physician by the of abide decision 720; Col 137, Conn.Sup. at A.2d at 40 482 find guardian to terminate treatment. We 743; 121, 660 P.2d at yer, 99 Wash.2d at parties in ease.17 this interests third Mass, Saikewicz, 11, 370 at n. 426 n. 11. N.E.2d at AND THE TO RIGHT INCOMPETENCY TREATMENT REFUSE MEDICAL

Furthermore, legisla Arizona’s person withholding Ordinarily, only the whose recognized ture has that “[t]he rights are life-sustaining procedures common-law constitutional or withdrawal competent per A may assert them. patient in with issue qualified from a accordance ability to not, any clearly son has the exercise purpose, does [the MTDA] too, So, right to refuse medical treatment. A.R.S. 36-3208. constitute a suicide.” § charged entity profession); Quin can be practiced situated individual members of the 46, lan, manslaughter. 667. with A.2d at 70 N.J. 11, Massachusetts, coma, think, vegetative U.S. a chronic 17. Jacobson v. 15. "A I Cf. 358, (1905) (compulsory only by the fact that in 49 L.Ed. 643 state differentiate S.Ct. enforced); asleep Applica appears smallpox person be all the time. law coma a vaccination state, vegetative may cycles Georgetown Col there Directors chronic tion President & wakeness, denied, Inc., although U.S. asleep neither cert. lege, 978, 331 F.2d (moth (1964) patient really with state does the communicate S.Ct. 12 L.Ed.2d Testimony Stephen compelled sub the Cox, Dr. environment.” infant er of seven-month-old Transcript September religious ob Trial over her mit to blood transfusion Myers, jections); 80. Correction v. Commissioner of (to (1979) pre N.E.2d Mass. security, prisoner prison provision Although serious risk to makes no vent Arizona undergo dialy suicide, compelled kidney punishment disease A.R.S. 13- criminal him protest treatment rendered 1103(A) person provides man- sis over that a commits himself); Kennedy aiding John F. intentionally defend slaughter by unable to another Heston, Hospital 58 N.J. we hold that Memorial Because commit suicide. (1971) pregnant (young unmarried made in this case A.2d 670 medical treatment suicide, compelled transfu submit blood neither woman decisions to commit were not likely permit nurses, life and facility, would save her sion that physicians, health care the guardian, guardian life). litem, healthy similarly any her to live normal nor 219 plainly subject tient to constitutional incompetent individual who has an does attack. his or her medical desires known made e.g., becoming prior incompetent. to Eichner, 464-465, 73 426 N.Y. A.D.2d at seq. et (MTDA). Unfortunate- §§ (emphasis original; cita- S.2d at 542-43 individual who was ly, this case involved an omitted). tions at the time medical treatment incompetent right to conclude that Rasmussen’s We issue had not ex- and who became treatment still existed de- refuse medical prior pressed desires her spite incompetency and her to her failure becoming incompetent. to desires articulate her not the first tribunal to confront We are becoming incompetent. prior to Because jurisdictions have problem. this Other exercising right, incapable she was that right unanimously that concluded however, determine could we must who merely medical treatment is not lost refuse right her. exercise that incompe the individual has become because right.18 preserve has failed to that tent and AN WHO CAN EXERCISE INCOMPE- this been conclusion have best Reasons TO TENT’S RIGHT REFUSE Supreme by the York articulated New MEDICAL TREATMENT Court: appeals that ei by conclude that standards of held We ... or a morality the terminal- ther a member could logic, and medicine right to equally, exercise refuse medi ly ill should be treated whether Rasmussen’s competent incompetent. Can 205, it be cal 154 Ariz. at 741 P.2d treatment. digni- that the human at 672.19 decision was based on United doubted “value of Its Supreme holding possible cases that a ty extends both”? What so- States Court objective party standing to con policy is vindicated or fur- third has assert the cietal by treating groups rights stitutional of others a substantial thered the two differently? What terminally relationship ill between the claimant exists by party, assertion of consti gained granting such a fundamental third who, right right only though by impossible, the claimant is those terminal- tutional ill, right not constitutional will ly damage have suffered brain and the claimant’s party is allowed stages dying coma in the be diluted if the third not last Baird, 405 Eisenstadt v. process? very notion raises to assert it. 438, 1029, infirmity 31 349 spectre of U.S. L.Ed.2d constitutional when S.Ct. Connecticut, v. (1972); Griswold against Supreme Court’s 381 U.S. measured (1965); 1678, recognition incompetents that 14 L.Ed.2d 510 must be S.Ct. Patterson, ex rel. NAACP Alabama process rights; all their in- afforded due 1163, 2 any irrationally L.Ed.2d deed State scheme which U.S. 78 S.Ct. competent ill terminally pa- denies to the 1229; prevents Conroy, conscious A.2d at basis that condition her

18. See 98 N.J. at her 718; choice.”). Conn.Sup. Foody, 40 at 482 A.2d at exercise Kennedy Hospital, 452 John F. Memorial So.2d 923; (footnote Barry, 445 So.2d at 370 omit at ted) "priori- developed appeals also 19. The court of (“[T]he right privacy constitutional ty surrogate to minimize list” of decisionmakers empty incompe be an if one who is would judicial future intervention in the amount of granted competent of a tent were not counterpart 154 Ariz. 741 P.2d cases. similar Colyer, rights.”); to 123, exercise per- appointed guardian, (judicially at 673-674 sons) 744; Severns, P.2d at Wash.2d spouse, designated by patient, child adult (”[T]o deny at 1347 the exercise because A.2d children, parents, majority nearest adult deny patient is unconscious would be relative, attending physician). ac- living We Mass, Saikewicz, 736, 744, right.”); surrogate knowledge decisionmak- not all 427; Quinlan, 70 NJ. at N.E.2d at guardians. court-appointed We de- be ers will cline, however, ("If putative decision Karen to A.2d at 664 permit "priority develop list” non-cognitive, vegetative existence this impression this and vacate this case of first regarded as a to terminate natural forces appeals’ opinion. portion of court of privacy incident ... valuable of her solely discarded on the then it should today We need not torship Torres, decide whether a fam- (Minn. 357 N.W.2d 332 1984). ily member could or could not exercise Ras- mussen’s to refuse medical treatment Hamlin, guardian In had the statu- because no attempted member ever tory authority “to care for and maintain to do so in this case. The facts of this case incompetent person, or disabled assert limit our to review a determination rights interests, or her and best Fiduciary whether the guardian Public as provide timely, informed consent to neces- vicariously could exercise Rasmussen’s sary procedures.” At issue was right to refuse medical treatment. guardian, whether part as duty of his “to Hamlin, care for and maintain” could Although the above-cited caselaw terminate a life support system. The gives Fiduciary standing, the Public to as Washington Supreme Court admitted that sert Rasmussen’s to refuse medical dictionary “a literal definition seem would treatment, disagree we with the court of authority to exclude to consent to termi- appeals permits Fiduciary that it the Public nation. A sup- decision to terminate life right. guardian to exercise that As the ad port systems, however, transcends dictio- litem noted: definitions,” nary 102 Wash.2d at logical The extension of the Court of P.2d at 1375. The court then observed that Appeals[’] reasoning person is that the guardian statutory had authority to standing to assert a constitutional assert “rights Hamlin’s and best interests” right in court could also make the deci- and concluded: “Just as medical interven- person sion for the third as to whether is, cases, majority tion in the clearly in they contracep- could or should receive ward, the best interests of the noninterven- tives or become a member of may appropriate and, tion in some cases be Obviously, NAACP. this is not the rea- therefore, in the ward’s best interest.” Id. soning Supreme Court of the Unit- The court then examined the medical evi- States____' ed dence, concluded it in that was Hamlin’s Review, Appendix Petition for B support best interest to terminate the life system, relying guardian and thus held that the Supreme

Instead of on Court caselaw, analysis statutory authority had the begins our to consent to with an exami- nation of termination. relevant Arizona statutes. The superior subject court has jurisdic- matter Torres, the conservator’s duties and adjudicate tion to relating all issues to the powers “include[d], but not limited [were] protection incapacitated persons. A.R.S. power give any necessary to ... to [t]he 14-1302(A)(2). Contained within the § consent to enable the ward or conservatee jurisdiction authority ap- court’s is the necessary pro- receive other point guardian. 14-5303, A.R.S. §§ care____” court-appointed fessional The general powers -5304. The of a duties representing argued attorney Torres that a guardian are set in forth A.R.S. § conservator’s order to remove a conserva- provides part: guardi- which in “A relevant support system life was not tee’s a consent may give any approvals consents or that necessary medical care. The receive may necessary be enable ward argued conservator that his consent would care, professional receive medical or other meaningless if it did not include the counsel, treatment or service.” A.R.S. power to refuse The medical treatment. 14-5312(A)(3). Court, Supreme focusing Minnesota on the argues statutory language litem that a are not limited “but to”, guardian’s right approve to consent to or had the concluded that the conservator implied, express, authority medical treatment does not include the if not to order support systems to refuse medical treatment. Similar the removal of life “if the arguments longer were made Matter are no Guard- conservatee’s best interests Hamlin, ianship sup- Wash.2d 689 served the maintenance of life (1984), ports....” P.2d 1372 and Matter Conserva- 357 N.W.2d at 337. Hamlin, little more than a mechanistic

Unlike statute give 14-5312(A)(3) rubberstamp for the wishes of the medical does A.R.S. § do. right to assert Rasmussen’s This we decline to team. Nevertheless, Arizona follow conclusions reached Ham- “best interests.” We hold the Public holds: caselaw lin Torres had the Fiduciary Rasmussen’s governing the cardinal consideration authority implied, express, statutory if not guardian appointment of a court in its to refuse to exercise Rasmussen’s a person estate of ward the medical treatment. effectively the to serve most best how temporal, and mental interests and moral ON GUARDIAN’S LIMITS living person. of a welfare DISCRETION Henderson, Ariz.App. Countryman v. litem that the contends P.2d And have discre- guardian should not unbridled 14-5312(A) contains in although A.R.S. § any or all to refuse tion decide whether troductory language suggesting, as agree. We treatment. Torres, guardian’s are that a duties broad enumerated, specifically such er than those developed two stan Courts have inapplicable introductory language surrogate decisionmaking: guide dards note, however, that here.20 We (cid:127) A.R.S. inter judgment” and “best “substituted liberally requires construe us to judgment ests.” Under the substituted guardianship the statutes. standard, guardian “attempt[s] to reach the opinion, incapacitated person the In our the to consent the decision that if he or she able approve delivery to or the of medical care would make were the necessarily right to choose.” President’s Commission for must include the con Medicine and approve delivery Study of no medi Problems in sent to or Ethical Research, would, De as the Biomedical and Behavioral cal care. To hold otherwise Treat supreme ciding Forego Life-Sustaining Washington and Minnesota courts (hereinafter ment, (1983) observed, Commis ignore the fact that oftentimes a guides a Report). This best patient’s interests served when sion standard are best decisionmaking patient a guardian’s or when medical treatment is withheld with comp has his or her intent while drawn. To hold otherwise would also re manifested Unfortunately, in this the record guardian’s duce the control over medical etent.21 14-5312(A)(3) types pro- of life- preface to son’s desire not to have certain sustaining 20. The A.R.S. § cer- under person treatment administered incapacitated "A vides: might It be evi- tain also circumstances. powers, rights respect- has same and duties patient oral directive that the denced in an ing parent respecting ward that a has his friend, member, gave or health child____ to a particular, unemancipated minor might provider. durable care power authorizing It consist of a qualifying foregoing, a and without appointment proxy attorney of a duties____” (em- following powers has the person particular make the a added). phasis We hold decline to that patient’s if he is no on the behalf decisions longer language emphasized permits us to conclude making capable for himself. them incapacitated per- guardian can assert an might the form of reactions that It take right to refuse medical treatment even son’s regarding voiced authority specifically though enu- such might de- others. also be administered to It 14-5312(A)(3). holding Such a §in merated person’s religious beliefs and duced from a parent require us first to conclude that would religion, pa- of that or from tenets unemancipated has to assert his minor pattern re- tient’s consistent of conduct right to refuse medical treatment. We child’s spect prior his own medi- decisions about factual situation be- never addressed that have cal care. fore, today. faced Because of are we with it nor Conroy, at 1229-30 98 N.J. at 486 A.2d case, import today’s significant we hes- (footnotes omitted). and citations any bootstrap- avia itate to reach conclusions judgment has been The substituted standard resolving ping process issues that would call for gov- permitting past preferences to criticized for currently previously nor before us. never though subsequent ern even change radically person’s over can interests Dresser, might Life, Incompetent in a writ- an intent be embodied time. Death and Such document, will,' stating per- Val- ‘living Conceptual Hidden Patients: ten Infirmities existence, virtually Ras tative was non-existent. any evidence that case is barren of Thus, any medical desires medical treatment administered expressed her mussen becoming incompetent. of the DNH and DNR or- any prior to the absence form minimal, patient’s any, if provided of a Where no reliable evidence ders would have intent, exists, here, judg only postponed substituted benefits and would have little, guid provides any, improved death rather than ment standard Rasmussen’s surrogate decisionmaker ance to the her life. We believe that the trial in favor of the “best should be abandoned properly that Rasmussen’s best concluded standard.22 interests” placement interests would be served DNH orders and retention of the DNR and standard, the the best interests Under medical chart. on her surrogate assesses what decisionmaker patient’s in the medical treatment would be AD LITEM ROLE OF GUARDIAN objec such interests as determined best briefly address the We turn now pres suffering, as relief from tive criteria request definition guardian ad litem’s for a functioning, and restoration of ervation or type proceeding. Al- his role this of life. of of sustained quality23 and extent to of- though our comments come too late “An Report at 135. accurate Commission guardian ad litem guidance to the encompass consideration of fer will assessment desires, case, him and op they hopefully will assist present the this satisfaction of the satisfactions, in similar future guardians and the ad litem portunities for future other regaining the developing or cases. possibility of Id.24

capacity for self-determination.” during appointed ad litem is guardian A an represent guardianship proceedings ap Fiduciary was the Public When person has no person if such incapacitated was com guardian, as Rasmussen pointed guardian The 14-5303. counsel. A.R.S. with her environ pletely § unable to interact “represent the is to litem’s function ad ment, probability that she and the medical person. incapacitated of the cognitive sapient interest[s]” ever return to would 14-1403(4). representing In state, vege- A.R.S. distinguished from a chronic (criticism applica- Law, B.Y.U.L.Rev. 3^2-93 Ariz.L.Rev. ues in the (1986). 28 judgment standard when of substituted tion exists). patient’s But see intent evidence of Mass, 139-140, 635-40, Foody, Conn.Sup. at 482 A.2d 40 at 120- 22. See 405 N.E.2d Spring, at 721; Conroy, competent; 486 A.2d at 1231 expressed 98 N.J. at while (patient at (“[I]n no intent proof pa adequate patient's upon opinion wife and the absence court relied wishes, pretend judgment); that the Saikew- applied it naive to tient’s is and substituted son icz, Mass, 749-53, for at 430-31 serves as basis 370 N.E.2d to self-determination at Supe (court judgment decision-making.”); applied standard Barber v. substituted substituted 1006, 1021, incompetent Court, though from Cal.App.3d patient Cal. was rior even 484, 493; ("The birth). Report Rptr. at 5 Commission should, surrogates possible, when decisions patient attempt replicate value that By “quality the ones that refer to "the of life” we doing patient,” and capable When lack for the make if so. of life has would continuation precludes continua- patient’s find in the about the wishes value that others of evidence not "the life____” this, Re- surrogates pro patient’s Commission should seek tion of interests.”) (footnote patient’s port omit best at 135 n. 43. tect the ("The ted); judgment stan substituted id. at 133 patient patient’s best suggestion if a was once reject any dard can be used that a 24. We merely by developing mat distin- capable views relevant to the determined can be interests further, hand; passive treat- be reliable there must from guishing ter at treatment active withdrawing views."); (Commis ment, withholding from id. at 136 evidence of those treatment, approach extraordi- using ordinary from best interests recommends sion breathing unknown); treatment, de- likely patient’s nary is and mechanical decision where feeding Such Note, devices. Elderly Incompetent: A mechanical Equality vices from for widely Death, criticized. been Dignified Stan.L.Rev. distinctions have Proposal 367-74, at A.2d (1987) (substituted e.g., Conroy, judgment 98 N.J. standard 1233-36; Barber, Cal.App.3d unknown); patient’s intent when deficient 490; Report at Note, Die; Cal.Rptr. Incompe Commission Let WhoDecides Live or Eichner, In re 82-89. Fate? In re Storar and tent's throughout ward, proceedings appointment litem and ad interests appellate process. Such the case procedural and substan- was perform will both here. duties. tive procedural litem’s A THE ROLE OF COURT drafting mailing to include

duties will Last, least, address certainly not we but legal parties any documents all interested degree judicial involvement is to which In ad affecting incapacitated person. required type in this of case. On this is- receiving dition, responsible he will be sue, diverge. opinions jurisdictions of other legal responding to documents all Quinlan leading are cases two Proce incapacitated person. mailed to the Saikewicz. however, the litem’s durally, guardian ad Quinlan, Jersey Supreme the New necessarily guardi duty to act as the permitted sup- life Court withdrawal adversary. an’s systems only Quinlan’sguardian- port after princi ad litem’s father, members, attending other duty all pal discover substantive will hospital physicians, and ethics committee treatment of relevant to medical facts concurred in such action. The then court. report such facts wrote: include, facts are not limited Such will but practice applying We a consider that to: a to confirm to court such i.e., incompetent: (a) facts about the inappropriate, not generally would be relationship age, incompetency, cause of gratuitous that would be a because close family and other members profes- the upon encroachment friends, prior and statements attitude competence, it field of but because sion’s treatment; (b) sustaining concerning life impossibly cumbersome. would be Such i.e., prognosis for recov- medical facts: distinguishable requirement from the a treatment, medical ery, intrusiveness of required traditionally in judicial overview (c) history; concerning state’s facts the adjudication as the other matters such i.e., exist- preserving interest in life: the incompetents. and commitment of mental in- dependents, party ence other third say This to the case of an is not terests; (d) guardian, and facts about the controversy justiciable access otherwise in- family, people other close to the the foreclosed; to we the courts would i.e., competent, the their petitioner: general practice and speak of a rather incompetent, their familiarity with the procedure. wishes, incompetent’s the perceptions of 50, at 70 N.J. at 355 A.2d 669.25 any potential for ill motives. point of view was articulated A different 133, P.2d Colyer, Wash.2d at at by Supreme Court of Massa- the Judicial findings If his 748-49. from factual the Although the court chusetts in Saikewicz. litem the concludes that probate judge should consider by noted that a best interests not be served ward’s will actions, knowledge physicians, guard- the guardian’s proposed the the advice hospital ethics com- experts, litem can medical ian ad as “counsel” for the ward mittees, challenge guardian’s during concluded: the conduct it Farrell, incompetent patient’s are best interests also 108 N.J. at 529 A.2d that the 25. See 380, sustaining 415; Peter, 365, of life treat- 108 N.J. served termination Matter of ment, ("[JJudicial contrary, (N.J.1987) legislation to the there review of a A.2d surrogate’s absent judicial this deci- give patient’s involvement in effect no need for sion.’’); decision unnecessary Colyer, 660 P.2d preference 99 Wash.2d at unless a conflict decisionmaker, ("In agree physicians on among surrogate cases where arises Ombudsman.”); prognosis uses family, physician a member and the close 372; L.H.R., exercise the judgment as Barry, 445 In re 253 Ga. best rights So.2d (1984); 439, 439-47, incompetent, intervention 321 S.E.2d of the Hamlin, formality."); more than a 689 P.2d at courts would be little 102 Wash.2d at Barber, Cal-Rptr. at (”[I]f treating physicians, prognosis Cal.App.3d at com mittee, agreement all and the are attempt We take a dim any parties, view of and the court properly made itself shift deeision-making ultimate re- available to dispute. Where, resolve the sponsibility away duly however, from the estab- parties all affected concur in the lished proper jurisdiction any courts of proposed plan treatment, of medical committee, panel group, ad hoc or approval proposed plan of the of medical permanent____ necessary is neither nor re- quired. judicial

We do not view the resolution of this most ques- difficult and awesome If requested the court is to resolve potentially tion—whether life-prolonging disputes among parties, particu interested per- treatment should be withheld from a larly disputes questioning the “substituted son incapable making his own deci- judgment” or the “best interests” of the constituting “gratuitous sion—as en- incompetent patient, then evidence neces croachment” on the domain of medical sary dispute to resolve the must be “clear expertise. Rather, questions such of life convincing.” Although typical evi require and death seem to us to dentiary standard in civil “by cases is process passionate of detached but inves- preponderance evidence,” we have tigation and decision that forms the ideal recognized higher the need for a standard judicial govern- on which the branch of exceptional e.g., civil Lin matters. Achieving ment was created. this ideal Co., thicum v. Nationwide Insurance Life responsibility is our and that of the lower (1986) (punitive Ariz. 723 P.2d 675 court, and is not any to be entrusted to damages only upon awarded clear and con group purporting represent other evidence). vincing We deal here with mat “morality society,” and conscience of our ters that in at least some instances raise highly matter how im- motivated or life-or-death issues and in all in instances pressively constituted. personal volve important interests more Mass, 758-59, at 370 N.E.2d at 434- typical than those found in dispute the civil 35.26 private litigants squabble where over a only ple One need look to the money. sum of We hold that court-re ante thora of cases cited at 214 n. disputes solved in cases of this nature must arguments P.2d at 681 n. where were by convincing be resolved clear and evi opinions heard or long were issued after Storar, also See dence. N.Y.S.2d at died, patient the judi had to conclude that 72; Leach, 420 N.E.2d at 68 Ohio cial intervention in decisions of this nature Misc. at 426 N.E.2d at 815. unduly can indeed be A min cumbersome. consequences of a decision to judicial imal amount of involvement in an terminate medical treatment will often be incompetent’s affairs is unavoidable in Therefore, any irreversible. the court in one, though, cases such as this where dispute patient will assume that the wishes guardianship sought is incompeten and an receiving treatment, to continue See A.R.S. cy hearing required. 14- prove and the burden to otherwise will rest 5303. Once the court resolves the matters party parties desiring on the or to termi guardianship incompetency, of and how nate the treatment. ever, its encroachment into the substantive concerning CONCLUSION resolving disputes should be limited to among patient’s family, attending the the The case under immediate consideration Yet, physicians, independent physician, the concerns Mildred Rasmussen. facility, guardian, principles procedures health care the and the the and articulated govern ad litem. Here the herein undoubtedly will future sim- opposed plan opinion, litem the of today’s medical treat ilar cases. Even after agreed however, upon by ment all other interested issues in this area remain unan- 442-45, L.H.R., portion e.g., 26. This of has been the sub- at 321 S.E.2d at 253 Ga. Saikewicz See, articles). ject commentary (summary of much and criticism. selected of policy—evenwhere there is unanimi- choice, by over- better by others swered—some guardian, opinion ty to- of between we confronted sight. Issues that have unresolved, and the doctors—that “substituted remaining family, day, as as those well moral, ethical, social, judgment” and “best interest” decisions be fraught are question order. The medical, legal is- validated and considerations. Such in whether refuse discontinue are not well-suited for resolution sues medical, Rather, simply left judicial proceedings. issue to be adversarial doctors; although medical evidence Legislature is best suited to address determinative, many ways the final comprehensive matters in a matter. these ethical, range incorporates a Only Legislature has the resources nec- decision moral, should not and societal values which essary gather synthesize the vast doctors, members, family solely to needed to formu- be left quantities information court, representatives no matter guidelines will late best accommodate meaning they informed many indi- how well and well rights and interests of Quin- Annas, might Reconciling be. involved in these See viduals and institutions Making Many Decision tragic other courts have lan and Saikewicz: situations. e.g., Terminally Incompetent, III AM.J. this conclusion. reached same (1979). A.2d LAW Such deci- at & MEDICINE Conroy, N.J. making 1220-21; Hamlin, requires sion the final validation— Wash.2d hearing— 1379; Satz, necessarily Like not adversarial P.2d at So.2d them, urge Legislature respond inspection detached and neutral we our officer, law, judicial consti- a accountable to permissible matters within to these public. Superin- to the limits. therefore tutional Belchertown State School tendent of of the trial court is af- judgment Saikewicz, Mass. 370 N.E.2d 417 ap- opinion firmed. The of the court part peals is affirmed reversed part. commit a question If were whether to peri- treatment for a psychiatric HOLOHAN, JJ.,

CAMERON and doctors, thirty no days, group od concur. members, and no group given the appointed by the court could be MOELLER, J., participate did not result, authority accomplish final such a the determination this matter. though they agreed it “for her even all was FELDMAN, Justice, concur- Vice Chief seq. good.” A.R.S. 36-520 et own See §§ ring. view, decision to end whatever my given life in the should be remains join opinion, except I in the court’s that it be- care and attention before less (154 portion Ariz. at 741 P.2d system Surely, comes irrevocable. 690-91) which holds that the final determi hearing guarantees patient a before nation to refuse or discontinue medical commitment, hearing some require must it may be made of treatment termination before refusal or supervision approval. without court On support. necessary for life question, this the court has followed the Quinlan lead of held the decision

in a may best-interest case be made

guardian in consultation with the physicians. No order nec

essary implementation before of the deci Quinlan,

sion. In re N.J. denied, 922, 97

A.2d cert. 429 U.S. S.Ct. 50 L.Ed.2d 289 may side of

Although argue one either question, it I believe that would be

Case Details

Case Name: Rasmussen by Mitchell v. Fleming

Court Name: Arizona Supreme Court

Date Published: Jul 23, 1987

Citation: 741 P.2d 674

Docket Number: CV-86-0450-PR

Court Abbreviation: Ariz.