*1 victims and witnesses providing for their Accordingly, judgment of convictions rights protection.” Acts, and the Ky. imposed by Fayette sentences ch. 212. Circuit Court purpose The are affirmed. statute ensure that rights certain were provided LAMBERT, C.J.; GRAVES, victims,
for a particular class of not to limit JOHNSTONE, KELLER, STUMBO, any rights or protections trial court JJ., concur. might choose provide for other classes of victims. Specifically, respect J„ WINTERSHEIMER, concurs in statement, impact the victim KRS 421.520 result without separate opinion. provides: attorney for the Commonwealth that, notify
shall upon victim defendant,
conviction of the the vic- right
tim has the to submit a written
victim impact pro- statement to the responsible prepar- bation officer for WOODS, by Deceased, Matthew ing the pre-sentence investigation through Litem, His ad Guardian T. report report inclusion Simpson, Jr., Appellant, Bruce to the court should report such a be by waived the defendant. KENTUCKY,
COMMONWEALTH OF (Now Cabinet for Human Resources (3) The victim impact shall statement Children), Cabinet for Families and by prior any considered court Appellee. sentencing decision on the or re- No. 1999-SC-0773-DG. lease, including probation, shock the defendant. Supreme Kentucky. Court of added). words, Id. (emphasis In other Aug. 2004. person designated as the “victim” under KRS 421.500 has the absolute impact
submit a victim statement and have prior considered the trial court
sentencing decision. This does not remove trial court the discretion to con- other impact
sider statements from other
individuals affected the crime. See Commonwealth, Ky.App.,
Brand v. (1997) (“We
S.W.2d know of noth-
ing suggests the trial court is without injured
discretion to allow those as a result testifying
of lesser crimes from to
impact lives; of the crimes their or for submitting
that matter from impact state- They simply
ments. are afforded statute.”)
right by *4 Manion, J.
Francis American Center for Midwest, Law and Hope, New Justice — Counsel for Amicus Curiae Catholics Unit- ed for Life.
COOPER, Justice. appeal challenges This the constitution- 311.631, ality provision of KRS Act, Kentucky Living Will Directive inso- far permits as it a judicially-appointed designated or other surrogate the withholding authorize or withdrawal of artificial life-prolonging treatment from a ward or patient persis- who is in a *5 either tent vegetative state or permanently un- If constitutional, conscious. the statute is the issue becomes to implement how it. Matthew Woods was born on November 24, 1941; he during died course these proceedings on June 1996. His intelligence quotient (I.Q.) was between 70 and, by judicial appointment, vari- agencies ous managed state had his affairs Jr., T. Bruce Simpson, Anggelis, Gor- since May January 1970. On don, Simpson Roberts, & Lexington, Coun- pursuant jury’s to a verdict that he was sel for Appellant. partially disabled, 387.570; ’KRS Mercer, G. Thomas Office of the Coun- 387.580, Fayette ap- District Court sel, Children, Cabinet for Families and pointed agent of the Cabinet for Human Pate, Sherri D. Cabinet for Human Re- (“CHR”) Resources as Woods’s limited sources, Counsel, Frankfort, General authority with to make certain for Appellee. Counsel him, decisions for including consent Bush, Richard N. George Schuhmann, S. procedures. medical Woods lived a Louisville, Counsel for Amicus Curiae home, state-approved group attended Citizens, Council for Retarded Inc. church, a girlfriend, participated regu- had larly day-treatment programs, and was Cetrulo, Robert C. Kentucky Northern able by to travel town to visit across bus Life, Right Covington, Edward L. friends. He by was treated for asthma White, III, Thomas More Center Law doctors University Kentucky Justice, Arbor, MI, & Ann Counsel for Medical Center. Amicus Curiae Thomas More Center for Law & Justice. 18, 1995, On April suffered car- Woods Bowman, Zeller, J.
Melissa Kenneth W. diopulmonary while being arrest trans- Frankfort, Advocacy, Protection and ported Coun- aby friend to the Medical Center sel for Amicus Curiae Protection and Ad- for treatment of a severe asthma attack. vocacy Division Kentucky Depart- hospi- His friend detoured to nearest tal, Advocacy. ment of Public Joseph Hospital, St. where medical could be mechanical- hydration trition and personnel and connect- resuscitated Woods him to a ventilator. Efforts directly ed mechanical into his small intes- ly pumped him he failed and never further revive Nevertheless, not dead was tines. Woods regained An electroen- consciousness. short KRS 446.400 because defined (EEG) revealed cephalogram- examination activity still emanated bursts electrical global encephalopathy, which his severe impulses brain stem. These from his ie., agreed hypoxia, was caused doctors man- myoclonus, condition caused severe deprivation that occurred between oxygen that spasms were ifested violent muscle cardiopulmonary arrest the resus- drug. Ac- only by paralyzing controlled treating Dr. Jere- physician, citation. His Robertson, no re- cording to Dr. there Suhl, consulting neurologist, miah myoclonus case of corded Robertson, Dr. agreed William C. absent some im- regaining consciousness had total and irreversible Woods suffered twenty-four first provement within cessation of all normal brain functions. condition did forty-eight hours. Woods’s pain nor responded He to neither voice He remained in a state of improve. He stimuli. was unable breathe unconsciousness,1 a condition permanent A tracheostomy performed swallow. vegetative a persistent more severe than permanently attach a mechanical venti- iwterrwptus, mors state,2 suspended by his pumped oxygen lungs. lator into body and machine”3 in a Lim- “merger of first, hydration pro- At nutrition and were life and cognizant between Later, bo somewhere through feeding vided nasal tubes. *6 legal gastrostomy performed so that nu- death.4 " 'Permanently "Prognosis in Cardio- 1. a condi- Survival Terms unconscious’ means for which, long-term, degree Usually Respiratory Functions: tion to a of medical reasonable years probability, by or even decades. solely pa- as determined Recovery Prognosis Neu- "Time When attending physician tient's and one other for with a examination, rologic Functions Can be Determined physician clinical on charac- cause; Degree by High Certainty: Varies by terized an absence of cerebral cortical usually encephalopathy, 1-3 hypoxic-ischemic or be- functions indicative of consciousness trauma, months; usually 6-12 in head interaction havioral environment.” months. 311.621(12). Physical Psychological “Degree Suffer- ing: None.” vegetative 2. "Persistent state is a condition Life-Sustaining Coordinating Council on having following characteristics: by Making Medical Treatment Decision (Functional): Courts, “Basic Irreversible State Court Decision Guidelines Definition functions; of all brain stem Making Life-Sustaining loss neocortical Medical Treatment rev.1993). (2d app. functions intact. Cases 175 B ed. Awake, unaware; Syndrome: “Clinical but Health, Director, Dep't 3. Mo. Cruzan unconsciousness; cy- eyes-open sleep/wake 261, 339, U.S. S.Ct. independence. present; respirator cles J., (1990) (Stevens, dissenting). L.Ed.2d 224 Damage: Neurologic “Anatomic Substrate of Varies, commonly but destruc- reports most extensive dissenting opinion inaccurately 4. The (see hypoxic-ischemic consciousness, post of neocortex n. regained tion that Woods i.e., dysfunction encephalopathy, recovery,” post brain at 59-60. and "made 58-59 by] during damage respiratory or cardiac Although reported [caused one Dr. Suhl examination, eyes ap- significant respiratory opened or cardiac and arrest ... or Woods his stimuli, compromise), peared matter he did not respond pain or subcortical white (head trauma). regained conscious- that Woods ever claim best, onset, ness, Dr. second- less recovered. At "Onset and Course: Sudden much temporary, partial report ary hypoxic-ischemic acute head Suhl’s indicated insult or permanent progression unconsciousness trauma.
Dr. Suhl estimated that biologi- Woods’s ville where Hurst, Dr. Arthur T. Jr. as- cal functions could be maintained for one sumed responsibility for his treatment. years ventilation, two possibly and agreed Dr. Hurst with the diagnosis and up years, to ten but that if the ventilator prognosis reached Drs. Suhl and Rob- removed, were death would occur in less ertson strongly agreed with the rec- than forty-eight hours. Drs. Suhl and ommendation to terminate Woods’s life- Robertson both recommended withdraw- prolonging regard treatment: “I continu- ing artificial ventilation so that the me- ing such heroic measures as a violation of chanically interrupted natural process of the Hippocratic Oath abdication of dying could conclude. They did not rec- Judeo-Christian ethic which I was ommend withdrawal of the artificially ad- Frankly, raised. I do not see much differ- ministered nutrition hydration until ence between what doing we are here and after death occurred.5 After a two-hour some of the atrocities that we read about meeting with Dr. CHR, Suhl and the elev- in Bosnia.”7 en members (including physicians) four the St. Joseph Hospital ethics committee September 21, 1995, On the district unanimously agreed with the recommenda- court opinion entered an holding order tion.6 CHR filed a motion in Fayette that KRS 311.631 authorizes a judicially- District Court seeking judicial approval of appointed guardian of an adult who the recommendation. The district court lacks capacity decisional and has not made appointed a guardian Woods, ad litem for directive,” an “advance to make health held a hearing, and accepted briefs on the care decisions on behalf patient, issue. Joseph St. Hospital filed an amicus including withdrawal artificial life-sup- brief supporting the motion. During the port systems, course of proceedings, these without obtaining Woods was advance transferred to Hospital Vencor judicial Louis- approval, long so as the *7 persistent vegetative toward a theology, state. See note psychology, psychiatry, and and is 2, supra, syndrome for the persis- clinical of a the former dean of the nursing school of at state, "Awake, vegetative tent but un- viz: Georgetown University Washington, in D.C. aware; unconsciousness; eyes-open sleep/ personally examining After Woods and re- ” However, cycles present wake .... Woods records, viewing his medical she testified: never reached the fourth facet of the clinical just lying up [H]e’s there hooked to these i.e., syndrome, "respirator independence;” breathing machines and from the machine that, and the record shortly is clear after Dr. no, own, independent and has no life of his report, Suhl's relapsed Woods into a state of anything or enjoy about complete life that he can permanent or unconsciousness which from, get any any- satisfaction legal continued until relate to his death. body just with him.... I would take him off machines, of the and let nature take its Contrary 5. to the inferences advanced in the course, 58-62, dignified I dissenting opinion, because that is a post think no one in way to die. proposed fight against this case ever Not to have to removal of Woods’s machine, hydration get artificial nutrition support sys- depleted and so that even a tems. help anymore. machine can’t dissenting opinion, post quotes 7.The at 58-59 Joseph Hospital 6. St. is an arm of the Roman the second sentence of Dr. Hurst’s remarks Charity Catholic Sisters of of Nazareth Health Bohan, suggest System. out of context to Care that Dr. Hurst lik- Sister Kathleen a mem- committee, ber life-support of the ethics ened the removal of holds a artificial masters degree nursing, in degree high- a doctorate in atrocities committed in Bosnia. Obvious- er education ly, administration with referring minors in he was to the artificial mainte-
31
dis-
Appeals granted
in
interest
sion.8 The Court
good
acts
faith
best
patient.
cretionary
affirmed.
also
of the
review and
We
affirm
granted discretionary review and
appealed
litem
to the
guardian
ad
except as
of the lower courts
holdings
Court, asserting that
Fayette Circuit
respect,
In that
proof.
to the standard
or,
311.681 is unconstitutional
if constitu-
hold that
artificial
we
withdrawal
tional,
judicially-appointed guardian
prohibited
is
support
patient
life
prove by
convincing
must
clear and
evi-
convincing
evidence
absent clear
withdrawing
life sup-
dence that
artificial
permanently unconscious
patient
interests;
patient’s
is in the
port
best
and that
persistent vegetative
state
public policy
that the statute violates
is in the
withdrawing
support
patient’s
died of
modern ethical standards. Woods
best interest.
1996,
2,
natural causes on June
before the
rule
the appeal;
circuit court could
ac-
on a
slate.
We do
write
clean
cordingly, the circuit court
dismissed
as
Jersey’s
Supreme
Since the
Court of New
Appeals
moot. The Court of
reversed and
Quinlan,
re
seminal decision in In
N.J.
70
remanded, citing
exception
to the moot-
(1976),
courts,
10,
many
A.2d 647
state
355
doctrine, applicable
ness
when the under-
Court,
including
“
this
DeGrella
Parrent
lying dispute
‘capable
repetition, yet
Elston,
(1993),
Ky.,
’
v.
698
858 S.W.2d
evading
Lexington
review.”
Herald-
Court,
Supreme
well as the United States
658,
Meigs, Ky.,
Leader
Co.
S.W.2d
Cruzan,
var
supra note
have addressed
(1988) (quoting
Ass’n v.
Neb. Press
relating
ious issues
a termi
Stuart,
539, 546,
U.S.
S.Ct.
ill
life-
nally
to refuse unwanted
(1976));
749 A.2d
695-96
and Schloendorff110 S.Ct. at 2851-52. Courts and com
Soc’y
125,
Hosp., 211 N.Y.
mentators have identified four state inter
v.
of N.Y.
92,
(1914),
N.E.
abrogated
105
93
on other
ests that may
person’s
limit a
right
grounds by
656,
2
Bing
Thunig,
(1)
v.
N.Y.2d
refuse
preserving
medical treatment:
3,143
3,
(1957),
163 N.Y.S.2d
(2)
N.E.2d
9
and life;
(3)
suicide;
preventing
safeguard
superseded by
grounds
other
statute on
ing the integrity of the medical profession;
by
Orentreich,
stated
Retkwa v.
154 and
innocent
protecting
parties.
third
164,
(1992)).
Misc.2d
33 (en ía, will, clearest evi- (1987) banc); living provide the Conservatorship 86 of Knight v. 185, desires. Drabick, Cal.Rptr. person’s 245 of a Cal.App.Sd 200 dence Health 840, (1988), Bay Manor abrogated by statute on Health Care Beverly 855 (but (Ala.2001) 92, re recognized by Ctr., as In Con- 99 other 820 So.2d grounds Care 519, ofWendland, argued 26 Cal.4th servatorship patient’s relatives incompetent 412, 151, 28 P.3d 165 ramifications Cal.Rptr.2d 110 she not understand did (2001); it); v. Foody Hosp., Mem’l Manchester she executed living of her will when 718, 127, 482 718 Conn.Supp. A.2d Browning, 40 568 Guardianship In re of Ctr., Wilmington Med. (1984); (Fla.1990) v. Sevens 4, (patient’s own writ- So.2d 16 (Del.1980); Inc., 1834, John 421 A.2d 1347 designation proxy ten declaration Bludworth, Hosp. Kennedy F. Mem’l v. of pa- presumption rebuttable creates 921, (Fla.1984); In 452 926 re BludwoHh, So.2d wishes); at 452 So.2d tient’s (La.1982); P.V.W., 1015, 424 So.2d 1019 persuasive evidence (living 926 will is 399, MaHin, 204, 450 re Mich. 538 N.W.2d intent and is entitled incompetent patient’s Quinlan, 664; (1995); at 406 355 A.2d at weight); Conroy, 486 A.2d great 431, Dillon, 426 Eichner v. 73 A.D.2d types (living 1229 will is one several (“To 517, (N.Y.App.Div.1980) 546 N.Y.S.2d against ex- person’s evidence of wishes deny patient the exercise because treatment); traordinary life-sustaining affd, deny right.”), is to 52 unconscious Strasser, Incompetents and the Mark 363, 266, 438 420 N.E.2d N.Y.2d N.Y.S.2d Consistent Right Die: In Search 64, (1981); Guardianship In re 70-72 Standards, 733, Ky. 83 L.J. Meaningful Hamlin, 810, 1372, 102 689 P.2d Wash.2d (“It (1994-95) for courts 747 is reasonable (1984) (en banc); Guardianship In re presumption that a rebuttable employ 10, 73-74; ofL.W., supra note at David W. competent living represents will Meyers, Medico-Legal Implications preferences.”). informed individual’s 11.6, § at 274 Dying Death and However, unequivocal oral also statements methods Courts have identified three Dillon, carry great weight. Eichner incompe- which to determine whether an 420 N.E.2d N.Y.2d N.Y.S.2d right to refuse or terminate artificial tent’s (Whether (1981) other someone systems life-support should be exercised: discontinu- than can authorize (1) “is not Previously expressed life-sustaining ance desires. here case because presented [the incompetent of an explicit wishes himself made decision for be- patient] extraordinary patient regarding life-pro- incompetent.”). fore he became if respected should be longing treatment Cruzan, expressed competent.11 while See judgment. Substituted 289-90, 110 at 2857-58 S.Ct. U.S. unequivocal If own incompetent’s (O’Connor, J., validity concurring) (noting unknown, courts have some wishes are instructions); Wendland, 110 of such Cal. surro- designated permitted (construing at 165 Rptr.2d 28 P.3d none, family or close gate, if member § assign- as Probate Code California judgment associate, a substituted to make ing weight incompetent’s dispositive wishes). incompetent would what prior informally expressed competent. document, had she been decided he or expressed in a written Wishes *10 intent, not to a fact remem- lates to future 11. statements are admissible under Such DeGrella, 803(3), exception 709. See 858 S.W.2d at KRE the "state-of-mind” bered. rule, hearsay the because the statement re- 34 (1995)
The only practical way
prevent
considerations),
(reciting
de-
same
affd,
(1996).
592,
struction
543
[incompetent person’s
Pa.
35
treatment;
Drabick,
treat-
689;
the various
mussen,
without
sages.”). of choice patient’s] considered statements [The developments incompetent, the common discussed law made before she became this opinion, supra. dispositive question Part I of at while not
hand, upon competent are evidence III. DEGRELLA. surrogate which a decision-maker could in the judgment Martha dam- exercise circumstances Sue DeGrella’s brain was aged by presented. an acute hematoma subdural aby savage beating. lan- caused She DeGrella, at 708-09. 858 S.W.2d guished vegetative persistent state grounded our decision in DeGrella We only by with her life maintained biological law right in the common self- primarily ventilation, nutrition, artificially supplied consent, id. and informed at determination Woods, hydration. Unlike Matthew judgment” and on the “substituted she was able to react on a reflexive level to Strunk, in Strunk v. principle enunciated painful apparently stimuli and did not suf- (1969), Ky., S.W.2d 145 wherein Woods, myoclonus. fer from unlike Also mother/guardian of adult incompetent expressed, she her competent, had when permitted transplantation to authorize against wishes the use of artificial life- body kidney of the ward’s into his treatment, sustaining specifically express- competent brother. ing Ann plight abhorrence at Karen act incompetent “The for the right (Quinlan, Quinlan supra). On another recognized all cases has become injured being occasion after in an automo- country of substituted as doctrine accident, protested being put bile she on judgment enough and is broad though respirator ques- even there was no to cover but also to cover all property Employing tion that she recover. would touching well-being matters judgment” inquiry, up- the “substituted we the ward.” the trial court’s to permit held decision guardian with- DeGrella’s to authorize DeGrella, Strunk, (quoting sys- life-support of her artificial 148). drawal pointed also S.W.2d at DeGrella tems. reasoning in Strunk that the ward was upon losing brother that recognize previous dependent oral his
We state- so him the ward’s jeopardized cannot be considered conclusive would ments (“best ?) well-being interest” more than patient’s quality life, about the Strunk, kidney. loss of a (quoting Id. life,” individual’s “inalienable 146). supra, at ap- We then cited with so declared in the United States Decla- proval the following passage from Ras- Independence ration of protected by mussen: Section One of our Kentucky Consti- tution,
“Under the
judgment
substituted
stan-
outweighs any consideration of
dard,
‘attempt[s] to reach
life,
quality
life,
or the value of the
*14
the decision that the incapacitated per-
at stake. Nothing in
Opinion
this
should
son would make if he or she were able to
be construed as sanctioning
support-
choose.’
...
guides
This standard best
ing euthanasia, or mercy killing.
doWe
a guardian’s decisionmaking
pa-
when a
approve
permitting anyone to decide
tient has manifested his or her intent
when another should
die on
basis
competent.”
while
other than clear
convincing
evidence
DeGrella,
Rasmussen,
that the
(quoting
at 705
choose
741
would
to do so.
(internal
omitted)).
P.2d at 688
citations
added).
Id. at
(emphasis
702
Although the
guardian
The
ad
naturally
litem
attaches
statement referred to the individual’s in-
great significance to the sentence immedi-
life,
right
alienable
it did not mention
ately following
quote,
the Rasmussen
viz:
the individual’s
right
liberty.
inalienable
go
We do not
the next step, as the
Cruzan,
U.S.
S.Ct. at
Cf.
Arizona court did in the Rasmussen
(“It
cannot
disputed
that the Due
case, to decide that “best
can
interest”
protects
Process Clause
interest
extend to terminating life-sustaining
as well as an interest
in refusing life-
medical treatment where the wishes of
treatment.”).
sustaining medical
That
the ward are unknown.
because,
have been
unlike the case
However,
Id.
go
we said
do not
“[w]e
judice,
sub
seeking to author-
step,”
the next
not that “we would not
ize withdrawal of DeGrella’s artificial life
go.”
expression
Our statement
anwas
support
mother,
was her
not a
agen-
state
restraint because the
facts DeGrella did
thus,
cy;
arguably the Fourteenth Amend-
not require us to reach the “best interest”
analysis
ment
apply.
Cruzan did not
analysis, as the case could be decided on
Morrison,
See United States v.
529 U.S.
the basis of
judgment.”
“substituted
598, 621,
1740, 1756,
120 S.Ct.
146 L.Ed.2d
guardian ad litem
emphasizes
also
the fol-
(2000) (Fourteenth
ap-
Amendment
lowing
policy
statement of
expressed as
L.W.,
plies only
action);
to state
but see
obiter dictum in the opinion:
(“[A] guardian
As long as the case is guardian’s confined substi- actor. A authority derives decision-making by tute surrogate a in from the parens patriae power state’s conformity patient’s with previously purely statutory.”). Finally, we note wishes, expressed the case involves that had DeGrella’s mother her been of self-determination and not surrogate health care under the Health However, quality Act, of life. Surrogate judicial- as evi- Care than rather regarding dence ly-appointed guardian, wishes she would have weakens, 311.978(1), case moves from self-de- been required supra, KRS termination quality-of-life towards to consider “the recommendation of the point test. At the where attending physician, the withdrawal the decision the of life-prolonging medical grantor grantor treatment be- would have made if the solely person’s known, comes another decision then capacity, had decisional if living rela- majority of the nearest in the best the decision that would be grantor.” add- tives. (Emphasis interest of ed.) (3) authorized consent An individual 1994 LEGISLATION. IV. under section shall for another this year DeGrel- Within after we rendered faith, in good act in accordance n Assembly repealed the the General any advance directive executed Kentucky Living Act and the Health Will who lacks decisional the individual Ky. Surrogate Kentucky, Act of Care and in the best interest capacity, Acts, § ch. and enacted their de- the individual who does Living Directive place Kentucky Will capacity. cisional Act, Acts, Ky. 311.621-.643.1994 ch. An authorized make individual pro- §§ 1-12. This Act combines decision under sec- health care *15 the Act and Living visions of former Will may authorize the withdrawal tion and a Surrogate Health Care Act adds withholding artificially-provid- or of 311.631, provision, pro- new KRS which hydration in nutrition and ed
vides, alia: inter in circumstances set KRS the forth (1) patient, If an adult does not who 311.629(8). capacity, decisional has exe- 311.629(3) added.) KRS lists (Emphasis or to cuted advance directive the in former the same circumstances listed the advance does not extent directive 311.978(3), KRS viz: a address decision that must be made, (1) following one the (3) surrogate may author- A health care of responsible parties, following in the withholding or of ize the withdrawal priority if no in order individual hy- nutrition and artificially-provided available, prior reasonably class is following circum- dration in act, willing, competent shall stances: be authorized to make health care (a) is immi- inevitable death When patient: decisions on behalf of nent, for the of this purposes which (a) judicially-appointed guard- The mean when death is provision shall patient,
ian if the medical expected, reasonable if appointed has been and medical days; judgment, few within a scope of the decisions are within the guardianship; (c) artificial nu- provision When the
(b)
patient;
spouse
The
of the
physically
cannot be
assimi-
trition
(c) An adult child of
or if
patient,
person;
lated
(1)
patient has
than
more
one
(d)
provision
When the burden of
child,
majority
adult chil-
hydra-
nutrition and
of artificial
reasonably
dren who are
available
its
outweigh
tion
shall
benefit.
itself
consultation;
for
in
exceptions
Even in the
listed
(d)
parents
of the patient;
(c)
(a), (b),
of this
paragraphs
subsection,
nu-
(e)
artificially provided
living
The nearest
relative
(1)
hydration shall not be
trition and
or if more than one
rela-
patient,
it is
if
need-
withheld or withdrawn
tive of the same relation
reason-
consultation,
pain.
or the relief
ed
comfort
ably available for
added.)
(Emphasis
It also
as a
reject
added
new
argument
We
two
our
(3)(b):
circumstance subsection
amici
guardian’s
that a
authority with re
spect to health
(b)
care decisions is restricted
in permanent-
When
powers
those
in
described
KRS
ly unconscious state
grantor
if
387.660(3). KRS 311.631 is a later enact
has executed an advance directive
ment
387.660,
than
Ky.
KRS
authorizing the withholding or with-
Acts,
141,
17,
§
ch.
prevails.
thus
drawal of artificially-provided nutri-
Adams,
Butcher v.
Ky.
tion
hydration.
(1949) (If
398, 400
S.W.2d
two statutes are
added.)
(Emphasis
irreconcilable,
the later
pre
enactment
Although
specifically
stated
vails.). KRS 311.631 also controls because
311.631(3),
legislative
intent in
it specifically
subject
deals with the
mat
enacting
obviously
the statute
was to au
ie.,
ter,
authority over end-of-life deci
surrogate
thorize a
acting
good faith to sions,
387.660,
unlike KRS
which address
direct
withholding
withdrawal
authority
es
over healthcare
decisions
life-prolonging treatment
from an “adult
general.
Phon, Ky.,
Commonwealth v.
patient” lacking decisional capacity who
(2000);
S.W.3d
107-08
#
DeStock
has not executed an
per
advance directive
Inc.
Logsdon, Ky.,
993 S.W.2d
taining to that decision if doing so would (1999).
Any
best interest.
oth
*16
er
Furthermore,
construction would render meaningless
presumed
it is
311.631(4),
imposes
which
law,
further re
that when
legislature
the
amends
if
life-supporting
strictions
the
purpose
the
of the amendment is to effect
consists of artificially-provided nutrition
a change in the
Country
law. Louisville
Further,
hydration.
if KRS 311.631
Gray,
915,
Club v.
F.Supp.
178
918
pertain
did not
withholding
(6th
to the
(W.D.Ky.1959),
with
aff'd,
41
See, e.g., Landry
City
v.
(as
pacify_”
in a
law
common
substituted
evidence
of
Dearborn,
416, 674
Mich.App.
N.W.2d
analysis,
objective
259
judgment
supra)
(2003) (“However,
term
(as
‘per
law
interest
700
evidence
in common
best
),12
in
statute as a
elabo
is
used
analysis,
available. We
supra
sonnel’
Thus,
noun,
adjective.
the best interest
as an
determining
rate that in
rather
but
life”
not con
patient, “quality
given
of
is
a broader mean
the term can be
view
subjective point
Indi
sidered from
v. Cleveland
ing.”); United States
objective
surrogate,
inqui
Co.,
but
is
121
ans Baseball
U.S.
(2001)
into
continuation of
ry
1433, 1441,
“the value that the
149 L.Ed.2d
S.Ct.
Rasmussen, 741
patient.”
has
life
presume that
(“Although
generally
we
n. 28 (quoting
P.2d
President’s
parts
identical words used
different
L.W.,
48),
Commission,
quoted
at 135 n.
the same act are intended
at 73.
also In re
482 N.W.2d
See
Christo
rig
presumption
meaning,
same
/.,
Cal.Rptr.2d
(“quality
at 134
pher
id,
meaning
same
[of
words]
and the
life,
prognosis
life
for re
expectancy and
may vary
purposes
to meet the
well
treatment,
includ
covery
and without
(internal quotations and citations
the law.”
treatment”);
ing
futility
of continued
omitted)).
ca
Regardless,
mental
“[l]ess
(“
Rosebush,
‘degree
Y. CONSTITUTIONAL ISSUES. not to inbe the conservatee’s best inter- We find no constitutional infirmity est. permit The result would be to per se in Kentucky Living Will Di freely conservator to end a conservatee’s rective Act. It specifically violating avoids subjective life based on the conservator’s right inalienable to life because does assessment, “in good albeit faith [and] “condone, authorize, approve mercy based on medical advice” ... that the euthanasia,” killing or “permit any affir enjoys unacceptable conservatee an mative or deliberate act to end life other quality of life. than permit the natural process dy Wendland, Cal.Rptr.2d 28 P.3d at ing.” KRS 311.639. recog The statute (internal omitted). pre- citations To nizes a distinction between affirmative possibility clude the of such an unconstitu- intent kill passive and a decision to application, tional we construe KRS allow a natural death to occur in accor 311.629(3) light 311.631 in per- patient’s dance with a liberty constitutional mitting withholding or withdrawal of interest and common law of self- life-prolonging treatment when the DeGrella, determination. 858 S.W.2d Cf. extremis, ie., is permanently corollary 706-07. A determina or in persistent vegetative unconscious tion that withdrawal of artificial life-pro state, or when inevitable death expected longing patient’s treatment best judgment reasonable medical within a interest is that the patient’s liberty inter days. few est to be free of outweighs any mechanism for balancing rights. tutional
treatment, does not violate Woods, who had not made an advance his authorize the termination directive, ing 311.631, interest the statute, by constitutional biological there is no rights either oral or patient may permitting but existence. Absent KRS ion, supra, liberty way instead written, have maintain for a interest. a third Woods’s two life-sustaining provides to exercise competing party consti Thus, like to A.2d at 1223. Of the four state est ing mination must relevant state ing garded at of the medical *18 279, strongest in preserving suicide; innocent third 110 “[1] As noted in Part I of S.Ct. [3] is the preserving interests, Cruzan, profession; safeguarding also be balanced the lives of its citizens. at parties.” Commonwealth’s 2851-52, right to self-deter life; and [4] Conroy, 486 [2] usually interests, integrity 497 U.S. prevent protect against inter opin re 311.631, however, KRS does not However, “the State’s interests Contra specify any particular diagnosis progno or weakens and the individual’s [interest] necessary sis to withholding authorize the grows bodily degree as the invasion or life-prolonging withdrawal of treatment. prognosis increases and the dims. Ulti extremes, mately to point
Taken
its literal
the statute
there comes a
at which the
permit
would
a conservator to
in
rights
withdraw individual’s
overcome the State
necessary
Quinlan,
health care
to life from
terest.”
43
pre-
a mere
whether
“need not decide
point,
At a
treatment serves
we
certain
suf-
unnatural-
would have
prolong
dying process
of evidence
ponderance
liberty
Here,
ly,
point
patient’s
this
at
at
howev-
858
706.
ficed.”
S.W.2d
refusing
prevails.
treatment
interest
er,
held that KRS
the lower courts have
unqualified
preserv-
An
state interest
require proof
clear
311.631 does
irrespective
patient’s
of either
ing
Thus,
issue
evidence.
convincing
express
wishes or of the
best
in this case.
squarely presented
into
beings
human
interests transforms
prisoners of medical technolo-
unwilling
specify
311.631 does
gy-
proof required
deter
the standard of
L.W.,
no
EVIDENCE.
by clear and convincing evidence in the thorized only upon a finding of clear and following situations: convincing evidence that incompetent
Among the
patient
most common of
ward or
permanently
cases which
uncon
require proof by clear
convincing
scious or in a persistent vegetative state
evidence are termination of parental
and that
patient
the ward or
would choose
(Cabinet
rights
Human Resources v.
to withhold or withdraw the life-prolonging
for
E.S., Ky.,
(1987)),
730
illegit-
S.W.2d 929
if
able to do so or that it would
(Bart-
imacy of a child born in wedlock
the best
interest of the ward or
Commonwealth,
lett v.
ex rel. Calloway, patient to withhold or withdraw the treat
Ky.,
(1986)),
45
convincing
and
evidence
Martin,
sumption
in
of clear
(patient’s
538
at 410
N.W.2d
408,
tent);
Harmon,
does
v.
760
to a written declaration
Cruzan
S.W.2d
that attaches
(en
(“[N]o
(Mo.1988)
banc)
declarations.”);
can
purely
425
oral
not attach to
State,
45,
incompetent
choice for
492
assume that
v.
129 Misc.2d
Saunders
required
of the formalities
510,
(living
the absence
(N.Y.Sup.Ct.1985)
517
N.Y.S.2d
statutes or
Living
under Missouri’s
Will
persuasive
“evidence of the most
will is
inherently reli
convincing,
the clear and
convincing
clear
dem-
and is a
and
quality
here.”),
evidence absent
sub
able
wishes).
also
patient’s
of’
See
onstration
aff'd
nom.,
Director,
Dept.
v.
Cruzan
Mo.
(“[A]
Martin,
written
We
for the reason
policy
prerogative of
public
ment of
is the
of a
person’s
evidence
wishes
“[w]hen
Assembly.”),
superseded
the General
or mental
physical
equivocal,
condition
recognized by
grounds
on other
err,
all,
statute
if at
of preserv-
is best
favor
Brock, Ky.,
Inc. v.
915 S.W.2d
Caterpillar,
Conroy, Two
ing life.”
A.2d
1233.
As
the Court
living
noted
jurisdictions have held that a valid
Maryland,
question
“The
convincing
Appeals
clear
evi-
will constitutes
adopt
quality
of life—best
respect
wishes. whether
dence with
(“[T]he
concerns our societal val-
Browning,
pre-
in the best interest of the authority on There is a dearth of written religious viewpoint from the of this issue reasons, For humane with informed resuscitation, ethicists, it- perhaps because consent, is physician do what self, advance- relatively is a recent medical medically necessary to alleviate severe ema- authority The that exists has ment. pain, per- or cease or omit treatment primarily nated from sources associated terminally patient mit a ill death whose Pope Church. the Roman Catholic However, is imminent to die. he should of Pius XII discussed the moralities both intentionally cause death. In decid- it: terminating resuscitation and accepting ing poten- whether the administration of technique which The of resuscitation tially life-prolonging treatment medical any- concerns us here does contain in the who patient is best interest the thing in itself. Therefore immoral behalf, incompetent in his is to act own making if he of patient, capable were the determine the physician should what it lawfully could use personal decision under possibility extending is for and, consequently give per- the doctor humane and comfortable conditions and hand, it. On the other mission use of prior expressed what are the wishes go of be- since these forms treatment family of or patient and attitudes the ordinary means to one is yond the which responsibility those who have for the bound, that an it cannot be held there is custody of patient. nor, obligation consequent- to use them Even death is not imminent but if give that one the doctor ly, is bound beyond patient’s coma is doubt irrevers- them. permission use adequate safeguards ible and there are accuracy diagnosis confirm of appears if it that the at- Consequently, and with the concurrence those who of at tempt resuscitation constitutes responsibility care of reality family such for the a burden patient, it is not unethical discontin- impose one cannot all conscience prolonging ue all medical means of life them, lawfully upon they can insist treatment. at- the doctor should discontinue these in- prolonging Life medical treatment lawfully can com- tempts, and the doctor artificially cludes medication and is a case of ply. There not involved here nu- technologically supplied respiration, of disposal patient, of the life direct hydration. treating a ter- way: trition this would nor of euthanasia ill minally irreversibly pa- comatose licit. Even when it causes never be tient, circulation, physician interruption should determine arrest out- more attempts whether benefits resuscitation never times, weigh its At all cause of cessation burdens. than indirect life, case the dignity apply main- and one must should be effect.13 principle tained. double likely action to have two effects— "principle double assumes that an 13. The effect” XII, Life, Pope Prolongation techniques, Pius even if these means are still *23 experimental stage An an at the Congress Address to International and are not (Nov. 24, 1957), By of a certain Anesthesiologists, accepting in 4 without risk. them, patient gener- the can even show The Pope Speaks Magazine osity in humanity. the service of permitted, patient’s It is also with the Vatican, May On the with the consent, means, to interrupt these where II, approval Pope published of John Paul results expectations. the short fall of its “Declaration on which Euthanasia” made, But such a decision to be states with respect “right as follows to the account be will have to taken of the to die”: patient reasonable wishes of the and the very Today important protect, it is to at patient’s family, of the advice as also of death, of dignity the moment both the of specially competent the doctors who are person the human and the Christian may in the matter. The latter in partic- life, against technological concept of judge ular that the investment in instru- attitude that threatens to become an personnel disproportionate and is ments abuse. Thus some of a people speak foreseen; they may to the results also die,” “right expression to which is an judge techniques applied the im- procure mean right does not the to on pose the or suffering strain by death either one’s own hand or proportion of the out benefits which else, pleases, means of someone as one may gain he she from such tech- but the peacefully rather to die niques. dignity. and with human Christian to permissible It is also make do with view, of of point From this the use ther- normal the means that medicine can of- apeutic prob- can pose means sometimes Therefore, impose fer. one cannot on lems. obligation to have anyone recourse cases, In numerous of complexity is technique already to a which in use can the situation be such as cause but which carries a risk or is burden- the way principles doubts about ethical is not the equiva- some. Such refusal applied. analysis, should be the final suicide; the contrary, lent on it pertains it to the conscience either of the acceptance be should considered as person, qualified sick those condition, human or a wish to avoid name, speak person’s sick or of application procedure of a medical doctors, decide, light in the disproportionate results that can to the obligations moral and of the various as- expected, or not to impose be a desire pects of the case. family expense excessive or the community. remedies,
If there are no other sufficient
is imminent in
inevitable death
When
used,
it is
with the
con-
it
permitted,
permitted
is
spite
means
sent,
pro-
to have recourse to the means
in conscience to take
decision to
vided
the most advanced medical
that would
forms
refuse
Thevathasan,
good
one
one bad.
be
See Pravin
Moral Absolutes
The action
act.
act, itself,
(1)
good,
Effect,
taken if
or at least
Principle
Cath. Med.
and the
Double
neutral;
(2)
good,
Q.
actor’s intent
(Nov.2003),
http://www.catholicdoc-
bad; (3)
precedes, or at
good
CMQ/Nov_2003/
effect
least
tors.org.uk/
lutes_double_effect.htm.
moraLabso-
with,
bad;
simultaneously
occurs
grave
justifies
proportionately
reason
17-18,
Commission,
15 n.
and burden-
ident’s
precarious
secure a
Do-Not-Resuscitate De-
life,
Lipton,
as the
L.
long
so
Helene
prolongation
some
Hospital:
Inci-
Community
to the
cisions in
person
normal care due
sick
Outcomes,
dence,
Implications
In such
interrupted.
similar cases is
(1986)).
1164,1168
no reason
the doctor has
JAMA
circumstances
help
failing
himself with
reproach
Thus,
impossible
logistically
would
danger.
every
decision
approval
court
require
*24
Doctrine
Congregation
Sacred
life-prolonging
or withdraw
to withhold
Faith, Declaration on Euthanasia
Furthermore, “[j]udicial inter
treatment.
roman_cu-
(1980), http://www.vatican.va/
decision-making of this
private
into
vention
docu-
ria/congregations/cfaith/
DeGrel
expensive and intrusive.”
sort is
ments/rc_con_cfaith_doc_19800505_eutha-
impossi
at 710. It is both
858 S.W.2d
nasia_en.html
added).
also
(emphasis
See
gratuitous
“a
en
bly cumbersome and
Bernardin,
Joseph
The Consis-
Cardinal
profession’s
upon the medical
croachment
Challenge
tent
Life: The
and the
Ethic of
Quinlan, 355
competence.”
A.2d
field of
Care,
Health
Address
Witness
Catholic
Thus,
parties
unless the interested
at 669.
Jamaica,
Center,
at the
Medical
Catholic
is unwar
resort
the courts
disagree,
1986) (“[T]here
(May
N.Y.
is no obli-
Rasmussen,
at
741 P.2d
691
ranted.
terminally
gation,
regard
in
to care
(“[The
encroachment into
sub
court’s]
ill,
extraordinary
initiate
continue
concerning medical
stantive decisions
which
ineffec-
medical treatments
would be
resolving
treatment should be limited
which, despite
tive
prolonging
among
family, the
disputes
patient’s
their
regard,
effectiveness
that
would attending physicians,
independent phy
an
impose
patient.”).
excessive burdens on the
sician,
facility,
guard
the health care
These
are
authorities
consistent with
litem.”); Drabick,
ian,
guardian
and the
ad
there
Judeo-Christian-Muslim belief that
(construing
Cal.Rptr. at 850-51
statute
245
an
is
afterlife more desirable than
guardian
give
consent
permitting
as
To those
that
earthly
espouse
one.
who
L.H.R.,
re
judicial approval); In
without
belief,
more
to de-
egregious
seem
(1984),
439, 321 S.E.2d
723
253 Ga.
lay a
beginning
natural death and the
by
grounds
statute on other
as
superseded
needlessly prolong
eternal life than
Doe,
re
recognized by In
262 Ga.
418
unnatural, artificially-maintained existence
Lawrance,
(1992);
3, 6
In re
579
S.E.2d
on earth.
(Ind.1991) (health
32, 41-42
care
N.E.2d
authorities,
From
conclude
these
we
their
“patients,
should be left to
decisions
does not
modern
311.631
contravene
families,
where none
physicians;”
and their
medical,
legal,
or moral ethical standards.
disagree,
participants
the interested
Jobes,
unnecessary);
court action
IX.
JUDICIAL OVERSIGHT.
(“Courts
proper
not the
at 451
are
A.2d
approximately
people
Of the
2 million
personal
agonizing
to resolve the
place
year,
hospitals
80% in
who die each
die
issues. Our
that underlie these
problems
institutions,
per-
care
and
long-term
more
cannot
inti
legal system
replace
haps
of those
a decision
70%
after
be borne
struggle
mate
must
forgo life-sustaining treatment has been
caring
patient,
those
for the
patient,
made.
Fiori,
patient.”);
care about the
those who
(“[T]here
for a
Cruzan,
302-03,
is no need
at
cognitive functioning possibility and the X. CONCLUSION. (2) thereof; improvement any relevant summarize, incompetent pa- To when an the expressions statements made living patient, competent, tient has not executed a valid orwill when as to his or her designated surrogate, a health presumption care KRS own wishes with rebuttable permits surrogate, designated attaching living designa- 311.631 to a valid will or a (3) priority, surrogate; order of to make health care deci- tion of a health care to the behalf, known, patient’s including sions on the patient’s philosoph- extent own ical, views, withholding life-prolong- religious, goals, withdrawal and moral life ing patient per- purpose treatment from a who is values about the of life and the lived, manently persistent way unconscious or in a it should attitudes to- and state, sickness, vegetative or when death procedures, inevitable ward medical suffer- (4) M.D., death; M.P.H., “Role Brain Death and physical ing degree condition, in the the Dead-Donor Rule Ethics patient’s caused pain Care treatment, treatment; Organ Transplantation,” Critical and termination of Medicine, (5) p. 2003 Vol. No. 2391. humiliation, degree dependence, resulting of dignity probably and loss WINTERSHEIMER, Justice (6) treatment; the condition or dissenting. recovery expectancy prognosis (7) treatment; completely I dis- respectfully must and without the with deep- It majority opinion. risks, sent from options and their various that de- effects; (8) ly this Court would benefits, disappointing and side whether agency this State to end cide allow an particular proportion- treatment would be totally the life of a innocent ward of disproportionate ate or in terms very It is more shame- same State. even gained; and impact benefits ful that the State would seek (the realize family being assumption human terminate the innocent life of patient be concerned about the would care and protec- entrusted its well-being her happiness of his or own disturbing tion. is the role of the Equally members). family hospital charged and the ethics committee Accordingly, the decision of the Court of care and comfort of part Appeals affirmed and reversed in actively deplorable in this sit- participating *26 part. Because Matthew is now de- Woods uation. ceased, unnecessary. remand is fatally lengthy majority opinion The is facts, it incomplete flawed in that recites LAMBERT, C.J.; JOHNSTONE, and cases, and seeks misinterprets previous KELLER, JJ., concur. justification moral from outdated sources. GRAVES, J., by concurs separate requires comprehensive It and detailed opinion. response. WINTERSHEIMER, J., by dissents major The concern here whether separate opinion. Act, Kentucky Living Will Directive KRS 311.643, applicable 311.621 to KRS and STUMBO, J., separate dissents without Kentucky, allows the Commonwealth opinion for reasons I set forth Parts guardian, to authorize the withdrawal through IV the dissenting opinion life-sustaining medical treatment WINTERSHEIMER, J. lifelong incompetent ward of the State. GRAVES, concurring. Justice This the decision to end case involves person, I concur and write the life a ward of this state separately because retardation, give KRS 446.400 is outdated and does not with mild to moderate mental guidance although crime did accurately sufficient to determine he committed no and judgment from the It meaningfully when death occurs. “The not seek this court. more been is estimated that there are than 2500 concept long brain death has rec- however, Kentucky ognized, plagued people guard- to be who have state seri- and ous inconsistencies and contradictions. In- ians. mental retardation Some deed, Such concept correspond fails to others have mental illness. individu- to and biological helpless un- als are vulnerable philosophical particularly coherent to derstanding deprived opportunity D. and Truog, of death.” Robert thus M.D., Robinson, Cei1;ainly, make for themselves. F.C.C.M. and Walter M. choices
is generally understood that tucky there is a Medical Center for a routine asthma necessity protect treatment, individuals with sub- he suffered a serious heart at- stantial mental disabilities from the tack. ad- consequences unwise, verse of potentially a district court jury found ill-informed or incompetently made deci- partially managing Woods disabled in his Ellis, sions. See James W. Decisions personal affairs and financial resources People with Mental Retardation: for pursuant seq. KRS 387.500 et Conse-
Balancing Automomy Considerations of quently, appointed the district court Protection, 37 Villanova L.Rev. 1779 Commonwealth as a guardian limited (1992). person’s This includes a inalien- deprived Woods. district court order right able to life as articulated in the Unit- dispose property; Woods his ed States Independence Declaration of instruments; to execute to enter into con- guaranteed by the Kentucky Constitution tracts; living arrangements; determine 1,§ Elston, as set out Ky., DeGrella v. procedures; consent to medical to ob- Kentucky S.W.2d 698 law re- license; tain an automobile driver’s and to quires guardians per- assure manage his financial affairs. The Com- sonal, civil human rights of the ward monwealth, guardian, as limited had the protected. Chapter are 387 and De- responsibility authority and the to exercise Grella, supra, govern should the decision rights such for Woods. of a withdraw withhold It should be clear that con- Woods was treatment under KRS 311.629 and KRS pursuant sidered to appropriate civil action 311.631. not to be of sound mind before he fell into old, year mildly Woods was a 54 retard- placed unconscious state and was on a man, ed who had been a ward of the state mechanical ventilator. As noted since years he was 18 old. The evidence court, Appeals Court of and the circuit *27 I.Q. indicates that he an had 71 and the probably capacity Woods had the never to capacity intellectual of an year 8 to 10 old decide whether he would have wanted life- child. supporting if he measures discontinued required ever such measures. He had not apparently Woods lived a full in a prepared any living advance directive or family care home. It is entirely likely that will, doing nor was he ever capable so. he had in Mends the home and knew professionals who worked with him fairly The circuit court applied should not have girlMend. well. He had a He went to an Living the a Will Directive Act. As Court day program days review, adult treatment three a of final required we are not to week. He attended church and com- adopt was the decisions of the trial court as to law, traveling fortable across town interpret bus to a matter of but must the visit guardian provided meaning his Mends. His according plain statutes to the him with limited medical and financial legisla- de- the act and accordance with the cision-making assistance and Floyd County Woods was tive intent. Bd. Ed. v. capable taking personal care of his Ratliff, Ky., 955 It is S.W.2d always very friendly needs. He had been plain reading Living clear from a of the frequently greeted and strangers total Will Directive Act that the Assem- General with enthusiasm and exuberance. bly apply He was did not intend that it to would polite, outgoing, up liked to dress and oc- someone like Matthew Woods because casionally cigarette. smoked a Act applies to adults who are at least University years while en route to the of Ken- mind. old and of sound 1) Act Directive Living The Will Act on two time 1991. periods: The focuses that, patient, adult who decisional “If an patient provides Before adult loses 2) and After the has not capacity capacity, adult not have does decisional capacity. such The Act does to the loses an directive or executed advance person of a who has address situation not ad- directive does extent the advance per- life-long incompetent. Such made, been ... must be a decision that dress made advance son could never have an au- individuals] shall be specified [certain directive because he was never of sound care to make health decisions thorized mind to the time in which he lost his prior 311.631(1). KRS patient.” behalf make capacity decisional and communi-
cate health care decisions. Guardianship Statutes II. in the proper approach The was out set that this always possibility There is con- relating guardianship statutes and guid- and again, will arise some situation servatorship persons Chap- for disabled and ance should be available individuals and as interpreted ter 387 consistent with organizations that are confronted with used, If such criteria DeGrella. had been It is respectfully or a similar situation. the Commonwealth would have had no ba- relating to suggested that the statutes request on which to of life- sis removal dis- conservatorship guardianship from supporting patient. 386 et. Chapter seq., should persons, abled principal issue in DeGrella be invoked. could lawfully ap- whether trial court 387.640, a limited Pursuant KRS legal prove guardian general duty guardian, has the guardian authorize the termination of artificial nu- good carry diligently out faith hydration trition and of an incompetent by the powers assigned duties and specific person person, competent, when that while and, in to assure part, Court expressed life-support- had her wishes rights civil and human personal, Although a ing measures be discontinued. protected. Although specific ward are majority upheld this Court decision order, can be modified court duties hydration from to withdraw nutrition limited must follow DeGrella, majority made it clear that it (3) (4) 387.660(2), as follows: permit of life- would withdrawal incompetent support *28 make for the ward’s provision To the of that un- where wishes were care, comfort, and ar- and maintenance fact, In that known. DeGrella established educational, social, voca- range for such life-supporting the withdrawal of measures tional, as are and rehabilitation services right the of a violated inalienable to life will the ward appropriate and as assist if such not based patient withdrawal were of maximum self- development in the clearly expressed the of the on wishes independence. reliance patient. (3) necessary give any To consent unambiguous language The clear and the receive to enable ward to approval patient at required the Act an adult to be care, coun- professional medical or other years age and of mind least 18 sound service, sel, that a except treatment or 311.621(1). regard to a civil matter. KRS of a may not consent behalf abortion, sterilization, psy- deprived had been ward previously
Woods
organ,
bodily
of a
things,
chosurgery, removal
right, among
his
other
to consent
pro-
of a limb unless the
procedures by
amputation
the
court
to medical
district
eedure
approved by
is first
order of the medial and intended to provide services for
court or
necessary,
in an emergency
incompetent persons
reasonably
as
infera-
situation,
preserve
prevent
the life or
ble from the nature of
guardian’s pow-
the
serious
impairment
er,
physical
majority
guard-
refused
allow a
health of the ward.
ian to
support
withdraw life
measures
incompetent
from an
ward where the
respect
To act with
to the ward in a
wishes of the ward were
manner which
unknown. The
deprivation
limits the
opinion
DeGrella
recognized that
rights
civil
personal
his
restricts
rights of self-determination and
only
informed
necessary
freedom
to the extent
consent in obtaining and
provide
withholding medi-
needed care and services to him.
cal treatment can
be exercised
an in-
These statutes do not mention the
competent through
process
of surro-
life-support
withdrawal of
systems.
gate decision-making
long
so
as the wishes
DeGrella,
this Court
considered the
patient
were known.
guardianship statutes as remedial and not
' Thus, under
exclusive,
guardian-
DeGrella and the
stating that
those
in-
statutes
ship
Commonwealth,
statutes of this
tend to
provide services for incompetent
decision to
support systems
withhold life
persons, not only
specifically
articulat-
ed,
from Woods
improper.
Such a deci-
reasonably
but also as
inferable from
only
sion could
been made if his
powers
nature of the
guardian.
known,
they
wishes were
which
were not.
The rationale of
large
the court relied in
DeGrella,
As
stated
“we do not approve
measure on Rasmussen
Mitchell v.
permitting anyone to decide when another
Fleming, 154 Ariz.
unknown.” Id. 387.640(1) Pursuant to KRS and KRS 387.660(4),
Consequently, although majority the of any favoring decision the re- the DeGrella court determined that the moval of support systems solely life based invalid, guardianship inherently statutes related to and con- on quality the of life is servatorship persons case, for disabled particularly were re- where as in this the of the subject At the where withdrawal point of life of the ward on views be- medical life-prolonging It is are unknown. fundamental support person’s decision pro- solely another guardians charged that are with the comes life, rights quality of the civil and human of of tection about the life,” their to as right wards. “inalienable individual’s Decla- in the so declared United States significance in the fact that There is by protected Independence ration of 387.660(3) in that nonlife- requires KRS (1) Kentucky of our Consti- Section One circumstances, court threatening approval tution, any outweighs consideration necessary may con- guardian before a is life, or the value quality of abortion, on the behalf of a ward to sent life, Nothing Opinion in this stake. sterilization, psychosurgery, removal of a sanctioning should construed be of a It bodily organ amputation limb. euthanasia, mercy killing. supporting that from appear analogy such would to permitting anyone do approve We to requirement, legislature intended die decide another should when guardians all wards from those protect any than and con- other clear basis not have their interest” at who did “best vincing that would patient evidence minimum, appear At a it would heart. choose so. to do life-long ward incompetent that a should protection receive the same level of from DeGrella, at 702. 858 S.W.2d Therefore, logically it is inconceiva- harm. Here, presented no there was evidence to guardian ble that would seek end the preference as to the of Woods to his intent of his ward. life-sustaining for the treat- withdrawal they ment. testified that Every witness Appeals III. Court Error did not his intentions and there was know in Appeals The Court erred determin- DeGrella, no of his intentions. record that the 1994 to ing amendments her desires had made medical 311.621-311.643, Kentucky Living Will prior incompetent. to becoming known Act, superseded guidelines Directive to competent enough Woods was never this Court DeGrella. statutes He to make a choice. entitled such was question legislative response were duly of his protection State or DeGrella, departure but rather a appointed protect right his application that Al- reasonable case. vulnerable, extremely unpro- He live. though there are factual significant differ- medi- against any tected termination of his ences, majori- it is clear the DeGrella Any deprivation cal of life treatment. ty contemplated involving the situation v. subject scrutiny. Bowers to strict similarly and other individuals situ- Woods Hardwick, 478 U.S. 106 S.Ct. gave ated. DeGrella clear direction on other L.Ed.2d 140 overruled those who would be involved future Texas, grounds Lawrence 539 U.S. involving right nutrition decisions L.Ed.2d S.Ct. hydration right to the effect interfering action in Any state upheld respected to live should subject with a fundamental convincing absence of clear and evi- Cleburne, City Tex- scrutiny. strict See as to what the individual would dence *30 Center, Inc., Living as v. Cleburne choose to do. 87 L.Ed.2d U.S. S.Ct. opinion part: The states in
When the decision is between ically life and and not any personal as a result of death, involved, and the state is surrogate the deci- governmental choice. sion maker is limited to those options con- test, In applying scrutiny the strict we forming to the preference constitutional find that the can showing state make no matters, life over death. In civil life that its outweigh private interests in- must Incompetent be chosen. individuals terests of the individual guaranteed by as right pursuant retain a to life to the Four- the federal and state constitutions. The teenth Amendment to the United States state, through agents, prove its must that Constitution and Sections One and Two of a governmental interest in the nontreat- Kentucky Constitution. DeGrella. Cf. ment of patient a overrides the interest in life of patient. Such a burden was not Best IV. Interest Test satisfied in this case and could not be The Court of Appeals erred when any satisfied in case involving a ward of adopted the “best interest” test announced the state. in Rasmussen. The Appeals Court of was attempted The State to present evidence mistaken when it held that KRS 311.631 providing that life-sustaining measures exercise, guardian authorized a “substi- life,” denied him a “meaningful Woods tute decision-making” incompetent for an “inhumane,” “futile,” in “not his best inter- person based on the best interest stan- est,” and “abusive.” Such beliefs amount dard. a Such conclusion was considered to a personal subjective judgment by state clearly explained in DeGrella to the quality bureaucrats about the effect that the best interests was to be ward. The State should not be allowed to exclusively viewed from the standpoint of quality question. determine the of life well-being health and of the ward and public The policy Kentucky as synonymous with the ex- decision the ward pressed in Chapter would 387 is to consider the choose to make if conscious and wishes of the in the ward manner ex- competent to do so. As noted in DeGrella: pressed by him and to involve the ward go We do not to the next step, as the decision-making greatest pos- extent Arizona court did in the Rasmussen sible. case, to decide that “best interest” can terminating extend to life-sustaining Decisions under KRS 311.629 and medical treatment where the wishes of irreversible, 311.631 be but all such
the ward are unknown.
caution,
decisions should err on the side of
Here,
We to adults are die decide when another should of who are sound mind years age and convincing persons other than clear and such as Woods patently basis excludes that the would chose to had since his evidence who been a ward state ... birthday, age do so had a mental of 8 or 18th never been to be years and had shown at 702. DeGrella also stated: 858 S.W.2d testamentary capacity. sound mind or prefatory There is one issue which we testamentary prop- wills disposing Even embarking on this must address before erty made unless a cannot be lest our words be misunder- discussion mind, of sound much less years age and step slippery stood as first onto food furnishing regarding decisions by trial slope, misapplied courts essential medical care. and water and quality future cases: that is the “Permanently A. Unconscious” long issue. As as the case is confined Fallacy making by a substituted decision surro- disturbing aspects most conformity One gate wishes, is the reliance expressed majority opinion the case subtle previously *32 on the statutory “Permanently term improved,” that, Un- he noted in the next cou- conscious” 311.621(12), as defined in ple days: it became apparent that Woods supra, maj. op., at note 1. That term has was to open eyes able and look at him his medical meaning but the common import is awakened; when he was appeared Woods senseless because it infers irreversibility to pain to show when he was struck with an illogic unconscious state. The needle; and, through intravenous neuro- import is that it implies certainty logical analysis Robertson, by Dr. Woods person labeled such will never recover. longer was no in a Vegetative Persistent sense, In only person permanently words, State. In paralyz- other when the already unconscious is one that dead. ing drug stopped had been Woods’s condi- however, Using the label makes the tion improved. attempting govern the life or death of Restarting the placed medication Woods moderately likely another more to assume back in a perceived state of unconscious- that recovery impossible thereby 2, 1995, ness. a letter dated June Dr. order the death of another when the likeli- Robertson had re-evaluated Woods and
hood of adequately consciousness is not the conclusion that drawn Woods’s recov- ascertainable or if the likelihood becomes ery temporary was response because the predict. difficult to to external stimuli had dropped. Howev- Perhaps chilling aspect the most of this er, myoclonic jerks he also noted that the case is that the treating physicians had had diminished as “perhaps the result of arrived at the conclusion that Woods had medication”. Medication made for the permanent reached state of unconscious- purpose paralyzing likely pro- seems ness order to recommend withdrawal of duce a coma-like state. There was no support. Such a recommendation had indication in Dr. Robertson’s letter that been per- made on the belief that he was the downward turn in Woods’s condition unconscious, however, manently Woods was not the exclusive result of medication. recovery had later strong enough shown Woods became awakened and showed previous cause one doctor to retract his signs of pain paralyzing drug when. recommendation. According was removed. to Webster’s Medicinally-Induced 1. Permanent New Collegiate Dictionary, Awake means Unconsciousness? sleeping “1: to cease 2: to become It is even more serious to realize that again aroused or active 3: to become con- the lack of improvement Woods’ condi- scious or something.” aware or aware of tion being have been the result of his fair inference from evidence that by a paralyzing drug. medicated Ostensi- he could be awakened is that Woods was bly purpose diminishing for the an occa- no longer permanently unconscious. The motion, jerking majority sional opinion interpre- Woods had been has a different placed evidence, on a designed para- medication tation of this but a differ- that’s lyze opinion, his movements. medication is at ence of not a of accuracy Such matter likely Therefore, “permanent suggests. least to be the cause of as it it is unclear as In a paralyzing drug unconsciousness”. motion to the to the extent to which the 23, 1995, court filed June Dr. Suhl administered Woods had on contribut- report ing noted to that the administration of to his appearance “permanent un- consciousness,” the paralyzing drug stopped had been nor is it clear that hearing. paralyzing drug the date of the In addition to did not hinder his recov- Hurst, saying, myoclonus ery. “his Dr. (twitching/spasms) who treated Woods St. withholding medical speak of had withdrawal we Joseph Hospital, ordered *33 water, ward, of we must food, any person, and ventilation because of from a water, It Food, experienced. Woods and certain seizures we mean. specify what majority opinion that the should be noted any of these life. are Without ah’ basic by impassioned made part plea cites of the not, any person, conscious things, three much Hurst, “Frankly, I not see Dr. do Therefore, said that it can be die. will doing are difference between what we inter- of mors every person is a state that we here some of atrocities and (death food, save for ruptus interrupted) by remarks read Bosnia”. The about water, interrupted by air. Death is and subject in- Dr. be to various Hurst could interposi- supply things. of these further ex- terpretations as he offered no latín, however, makes the term tion of However, reasonably planation. can be therefore frightening more and seem atrocity the true is the termi- inferred that the medical the decision to remove makes life. nation of Woods’s The terms acceptable. seem treatments improvements and the of the Because trae using to describe the actions arewe recovery, had re- potential for Dr. Suhl food, reality: removing water masking are of earlier recommendation tracted his atrocity. living person is and air from and withdrawing mechanical ventilation life-pro- “removing the words to Change specifically recommended “continuation who from a longing treatment hydra- and artificially provided nutrition and it all sounds permanently unconscious” tion comfort and all care needed for his must easy to Care nice and swallow. “treat- life-sustaining and Such hygiene.” language our prohibit taken then to food, water, air, ments”, are neces- i.e. and atrocity. masking from standard live, sary every person including who are Dr. Suhl still those conscious. considerations on whether Many of the a lesser for resus- recommended standard food, water, and ventilation withdraw citation, life- meaning providing no longer concerning poor judgments made on are prolonging treatments such as resuscita- recovery probability However, key tion surgeries. Although at an unconscious state. water, food, separated that and Dr. Suhl unlikely it looked Woods one time types air treatments. from other medical again and three could become conscious Dr. Suhl’s retraction Despite be taken thought Woods should doctors majority potential recovery, die, Woods’s thereby he from the ventilator and conveniently opinion ignores this evidence off recovery was taken once he made (in- that the asserts eleven members Notwithstanding paralyzing drag. hospital cluding physicians) four of the “permanently had been labeled that Woods agreed with unanimously ethics committee unconscious,” reported Dr. Suhl the recommendation. during period of time recover Woods did Broad B. “Medical Treatments” is Too para- removal concurrent Distinction Would Give Without paralyzing drug Once lyzing drug. Rights Per- Prisoners More Than Sick again, him Woods administered to son. conditions. into the coma-like went back recovery, permitted had it been Such avail- the several of care
Among types para- 1) continue without intervention able, categories apparent: three are later included ventilation; drag, nutrition, lyzing hydration, basic 2) 3) machine ventilator. medicine; and, breathing without the procedures. When
An overbroad
standard that
its loose
danger
prison
culosis because of
to other
food, water,
ers);
language includes
see also Washington Harper,
and air un-
der the label of
U.S.
110 S.Ct.
“medical treatment”
The ought the “normal removed. we not allow (Con- State, care due to the sick in such cases” our standard to permit through gregation Faith, for the otherwise, Doctrine of the ad litem or deprive a IV) Bona, includes, fact, lura p. et the KentucMan of life. (cf. hydration use of nutrition and Pon- papal address also states that “it is Unum”, tifical Council “Cor le Ca- Dans enough general princi- to reaffirm the dre, 2, 4;4, Pontifical council for Pasto- ple according to which the value aof Workers, ral Assistance to Health Care man’s cannot be made subordinate to Workers, 120). Charter Health Care n. any judgment quality expressed by oth- probabilities, The evaluation of founded men; er necessary promote it is waning hopes recovery when the taking positive actions as a stand vegetative prolonged beyond state is against pressures hydration to withdraw year, ethically justify cannot the cessa- way put and nutrition as a end tion or interruption of minimal care for patients.” (emphasis these Id. lives patient, including hy- nutrition and *36 added.) by dehy- dration. Death or starvation expressed The standard in majority the is, fact, only dration in the out- possible opinion has failed to make an adequate come as a result of their withdrawal. ordinary distinction of care from extraordi- up becoming,
this sense it ends if done nary care. knowingly willingly, proper true and by euthanasia by majority omission. opinion The reference the that the afterlife is somehow than better Address, Paul II Pope supra, para John at impaired only on life is founded sincere (emphasis original). 4 religious religions generally faith. These Finally, any lest there be confusion over assert that are euthanasia and suicide euthanasia, espoused the stance on wrong because the end of life is God’s Vitae, Evangelium supra, para says, hands, not man’s. choice of The euthanasia becomes more majority ignore Not does the the serious it the form of a when takes authorities, also, ignores above but it the by murder committed on a per- others against teaching quality clear of way requested son who has in no it and DeGrella of life” Again, “quality life tests. the who has never consented to it. The rejected recently ethic was most in Grubbs height injustice of arbitrariness and is Family Center, v. Barbourville Health people, reached when certain such as P.S.C.: physicians legislators, arrogate power
themselves the to decide who argument The that there is Mnd ought ought to five and who to die. “quality of life” ethic is without mer- again Once we find ourselves before the rejected quality it. This has the Court temptation of Eden: to become like God philosophy By of life in DeGrella 3:5). (cf. good who ‘knows and evil’ Gen Elston, Ky., 858 Through Parrent v. (1993), By adopting recognized a standard that allows one 698 which S.W.2d Mil by to determine to an individual has an inalienable another
63 slowly by killed as their behalf will be by life declared the United States on of food and water. We done Independence pro- Declaration of removal authority, but of moral Kentucky so with veneer by tected Section One of full of core error. Any ethic decision quality Constitution. healthy
favors life of over the Proposed Not D. The Standard is Ob- infirm, the able-bodied over disabled jective intelligent mentally and the over analysis by the of best interests The extended, If challenged. logically contradictory majority opinion logically could a culture that condones produce to base the by permitting surrogate “the the extermination of the weak object inquiry into the decision strong more powerful. or the interest.” incompetent best regime Adolph The Nazi under Hitler is objec- is no mention of standards There too distant reminder this kind so-called tive measurements best eugenic approach. Unfortunately, such test. interest thoughts na- foreign are limited to philosophic logical inconsisten- tions can also but be found the writ- cies, contradictory nature and indeed ings of Justice Oliver Wendell Holmes apparent analysis, immediately are of the Bell,
Buck U.S. S.Ct. simple reference Colle- Webster’s (1927), approved L.Ed. which “Objective” Dictionary. is defined giate mentally of the incompetent. sterilization ideas, events, “viewing phenomena, etc. as Taylor Kurapati 236 Mich.App. [v. apart as external and from self-conscious- (1999)], calls to our N.W.2d “Objectivism” as ness.” is defined ex- attention influence Hitler’s “stressing objective reality, especially periments with sterilization had on subjec- distinguished purely from the eugenics Eugen- movement. American world, existence, phenomenal tive ics the fit espouses reproduction of *37 good the moral or the like.” discourages over unfit and the the birth “not “Subjective” is deter- defined Bowman, unfit. The the Road reason or the universal mined universal Eugenics, 3 U. Chic. L. Sch. Roundtable experience of human knowl- condition (1996). “a “Subjectivism” defined as edge.” is (Wintersheimer at 692 S.W.3d concur- supreme great which attaches theory ring). subjective elements importance to conclusion, majority In standard has the doctrine that individual experience... by ignoring been built the distinctions well the ultimate cri- feeling apprehension is it seated the authorities Or- within used. good right.” and the terion of what is dinary care, persons even reliant on majority opinion upon The focus care, may for such sub- State be incompetent patient’s best interests” “the jected judgment ato substituted standard subjective Simply actually a test. call- is person’s because it is the basic and funda- objective not make it so. ing it does such For right mental receive care. opinion to protect majority it basic refusal of the purposes, these fails to objec- rights rely recognize dichotomy who on the Kentuckians tive/subjective problem are further illustrat- during they State these times when Instead, that in following: elaborate majority opened sick. has ed “We determining pa- the best interests potential for atrocities similar to Bosnia tient, life’ not relying speak quality ‘the considered people where on the State to subjective from the point of view of scrutiny which is constitutionally required surrogate, objective but inquiry is an into when State seeks to terminate medical ‘the value that the glaringly continuation of life has treatment for one of its wards is ’ patient.” 311.631; for the absent KRS the State and its agents prove governmental must that a again, focusing subject Once on the patient’s interest in a nontreatment over- dealing with ‘quality obviously of life’ is rides the individual’s to life. This subjective. Calling objective is of no clearly burden was not satisfied avail. case of Matthew Woods and it could not any be satisfied for similarly other situat- YI. Conclusion ed case involving a ward of the state. It has person been said that no or court potential KRS 311.631 establishes a can judgment substitute its as to what is patient’s rights abuse of because how can an acceptable quality of life for another it be in the best interests to die? person. County re Westchester Medi- great potential There is a for serious con- O’Connor, cal Center on Behalf of flict of interest for the State when it is N.Y.2d 534 N.Y.S.2d 531 N.E.2d paying the for the treatment of médical bill distressing its ward. It is to note that it question There is no significant days after attack the heart safeguards for incompetent wards should Woods the Commonwealth filed in required any process by which this seeking district court to termi- approval might State seek to terminate life sustain- nate im- medical treatment. The ward ing incompetént medical proved immediately after the trial to the wards of the state. Most of the cases in point where his doctor rescinded his rec- the field of “right the so-called to die” discontinuing ommendation about the ven- jurisprudence deal with situations where a tilator. According physicians, to his competent person formerly competent or a dead, clinically Woods was never nor brain incapacitated who has become has sense, legal was he in other dead. expressed some thought or wish about how It was for the of Ap- erroneous Court he or she wanted to be treated such a peals to determine that au- KRS 311.631 situation. thorized a to exercise “substitut-
Even requires DeGrella that at least a ed decision-making” incompetent for an *38 clear convincing proof standard of is person subjective based on a best interests the necessary determining standard for Ap- test. It was error for the Court of surrogate may whether a healthcare au- peals to decide that the 1994 amendments withholding thorize the withdrawal or Act, Kentucky Living Will Directive hydration nutrition and and that the sub- 311.644, superseded KRS 311.621 and proof stantive standard of is substantial clear constitutional directives established and specific. by this Court DeGrella. right
The to life by majority natural The assertion that it is automatically which inheres approving and can be euthanasia or assisted sui- asserted all human beings. certainly appear It does cide is hollow. It would through any per- majority rise the exercise of that the has now taken the next surrogate governmental step slippery slope away sonal choice. down the from (cf. It is bestowed on man human sanctity his Creator of all innocent life and Independence). Declaration of meaningful The strict toward the secular value of Wade, v. in Roe U.S. introduced LICKLITER, Appellant, Philip Alan It is L.Ed.2d
93 S.Ct. DeGrella, complete abandonment years ago specifically only eleven which Kentucky, COMMONWEALTH subjective judg- rejected “substituted Appellee. recognized for It must be ment test.” De- departure it what is—a severe No. 2002-SC-0487-MR. Permitting when anyone decide Grella. Kentucky. Supreme Court than any die on basis other another should convincing pa- clear evidence that Aug. 2004. so, chose to is specifically tient would do tragically in DeGrella and now condemned majority opinion. in the
approved slopes articulat- slippery
concern about dissenting majority
ed both obviously us.
opinions upon in DeGrella is even any society which claims
the veneer of civilization such behavior
totally unacceptable. cannot close our We
eyes to life at the destruction of innocent development any stage impaired degrades
condition of To do so existence. En-
our own culture and all of us. The (1570-1631) poet ex-
glish John Donne when
pressed it well he wrote:
Any me, man’s death diminishes because mankind;
I am involved and there-
fore, never send to know whom tolls,
bell it tolls for thee.
Today, mentally this case involves a defi- knows
cient ward State. Who Only in the
whom it will involve future?
by making assumption the mistaken happen, power
could never of the State
has been unleashed to kill its own citizens.
STUMBO, J., joins as to this dissent I through
Parts IV.