ROSE WENDLAND, Appellant,
FLORENCE WENDLAND and REBEKAH VINSON, Respondents.
California Supreme Court Respondent's Brief.
July 21, 2000.
Third Appellate District No. C029439
JANIE HICKOK SIESS #166869
BROWN, HALL, SHORE & McKINLEY, LLP
3031 West March Lane, Suite 230 West
Stockton, California 95219
Attorney for Respondents FLORENCE WENDLAND and REBEKAH VINSON
*i TABLE OF CONTENTS
Table of Authorities ... ii
I. Introduction ... 1
II. Factual Background ... 3
III. Procedural Background ... 10
IV. Legal Argument ... 11
A. The Decision-Making Standard Set Forth in California Probate Code § 2355 Fails to Provide Adequate Procedural and Substantive Protections to Conservatees Whose Lives May Be Ended as a Result of Medical Decisions Made for Them by Their Conservators ... 11
B. California Probate Code § 2355 Denies to a Conservator Whose Life May Be Ended as a Result of a Medical Decision Made on His Behalf by His Conservator Equal Protection of the Law and Violates His Liberty Interest. ... 23
C. California Probate Code § 2355 is Unconstitutionally Vague Because the Meaning of the Term "Medical Advice," as Used Therein, Requires Interested Parties and the Judiciary to Guess as to its Meaning and Application ... 31
D. There is No Precedent for and § 2355 May Not Be Interpreted to Allow the Termination of Life-Sustaining Nutrition and Hydration for Persons Who are Not an a Permanent Vegetative State, Permanently Unconscious Or Terminally Ill. ... 35
1. Michael Martin ... 36
2. Edna M.F. ... 38
3. Drabick ... 42
E. The Legislative History of § 2355 Fails to Support the Third District Court of Appeals' Conclusion that Application of the Statute is Not Limited or Constrained by the Conservatee's Medical Condition. ... 44
V. Conclusion ... 46
*ii TABLE OF AUTHORITIES
Johnson v. Zerbst (1939) 304 U.S. 458 ... 14, 15
Roe v. Wade (1973) 410 U.S. 113, 155 ... 23, 25, 28
Thompson v. Oklahoma (1988) 187 U.S. 815, 825 n.23 ... 14
United States v. Mazurie (1975) 419 U.S. 544, 550 ... 32
Barber v. Superior Court (1983) 147 Cal.App.3d 1006 ... 18, 20, 21
Conservatorship of Angela D. (1999) 70 Cal.App.4th 1410 ... 27, 34, 33
Conservatorship of Drabick (1988) 200 Cal.App.3d, 200 ... passim
*iii Conservatorship of Morrison (1988) 206 Cal.App.3d 304 ... 42, 45
Cranston v. City of Richmond (1985) 40 Cal.3d 755, 763 ... 31, 32, 31
Cruzan v. Harmon (Mo., 1988) 760 S.W.2d 408 ... 17
Guardianship of Hayes (1980) 93 Wn. 2d 228 ... 26, 28
In re Martin (1995) 450 Mich. 204 ... 36, 37
In the Matter of Edna M.F., (Wis. 1997) 210 Wis.2d 557 ... 38, 39, 40, 41
Matter of Quinlan (1976) 70 N.J. 10 ... 43, 44
Thor v. Superior Court (1993) 5 Cal.App.4th 725 ... 1, 2, 15, 19
U.S. Const. Amend. XIV, Section 1 ... 12
California Constitution, Article 1, § 1 ... 13, 19
California Constitution, Article 1, § 7 ... 13, 24
California Probate Code § 1800 ... 22
California Probate Code § 1812 ... 22
California Probate Code § 1954 ... 28
California Probate Code § 1958 ... 27, 30, 33
California Probate Code § 2355 ... passim
This is a matter of first impression in California, the importance of which cannot be overstated. This Honorable Court has previously established that a competent adult possesses a fundamental right to refuse life-sustaining medical treatment. [FN1] However, this Court has never explored the legal and constitutional standards which govern a conservator's decision to withhold life-sustaining food and fluids from a conservatee who has been adjudicated incompetent to make his/her own medical decision(s) and, more particularly, is conscious and interactive.
It is undisputed that the conservatee herein, ROBERT WENDLAND ("Robert"), is not in a persistent vegetative state ("PVS"), nor is he permanently comatose or terminally ill. He is conscious and has cognitive function. Robert is a disabled person. He receives life-sustaining food and fluids through a feeding tube. Robert will never fully recover from his injuries, will always be dependent upon others for his care, and will never again be competent to make decisions for himself about his care and treatment.
FLORENCE WENDLAND, Robert's mother, and his sister, REBEKAH VINSON (collectively, for the Court's convenience, "Florence") assert that San Joaquin County Superior Court Judge Bob W. McNatt correctly prohibited Rose from ordering Robert's physicians to discontinue delivery of his food and fluids *2 via his feeding tube, an act which would certainly bring about his death by dehydration and starvation. Judge McNatt also rightly ruled that Rose must bear the burden of proving, by clear and convincing evidence, that it would be in Robert's best interests, taking into account certain subjective elements (including, but not limited to his previously expressed wishes, if any), to withdraw his life-sustaining treatment (food and fluids) and that, at the conclusion of the evidentiary hearing below, she had not sustained her burden. (R.T. 2506:28 - 2507:3.)
On February 16, 2000, the Third District Court of Appeal ("Third DCA") affirmed the probate court's determination that Rose bears the burden of proof in this proceeding, and affirmed that the appropriate evidentiary standard to be utilized is that of clear and convincing evidence.
However, the Third DCA erred when it ruled that "there is no constitutional impediment to application of [California Probate Code] section 2355 to the circumstances of this case." (Conservatorship of Wendland (2000) 78 Cal.App.4 517; 93 Cal.Rptr.2d 550, 567. ["Decision'']) That tribunal also wrongly concluded that, when reviewing a conservator's decision to terminate a conscious, interactive conservatee's life-sustaining food and fluids, a California probate court need only satisfy itself that
"the conservator has acted in 'good faith' and decided 'based upon medical advice,' that treatment is 'necessary,' after consideration of the conservatee's prior wishes and best interests. Thus, the conservator is not required to prove that the conservatee, while competent, expressed a desire to die in these circumstances. Moreover, it is not for the court to decide independently whether the conservator's decision is in the conservatee's best interests; the court is merely to satisfy itself that the conservator has considered *3 the conservatee's best interests in good faith and met the other requirements of section 2355."
Moreover, the Third DCA wrongly held that the application of § 2355 to a conservator's decision to take action which will bring about the conservator's death is not limited to patients who are in a PVS. (Decision at 565.)
It is from those portions of the Decision that Florence sought review by this Court.
Prior to sustaining life-altering injuries in a September 1993 motor vehicle accident, Robert lived with Rose and their three children in Stockton. Rose provided daycare services in their home, while Robert was employed by Rettig Brothers as an auto parts salesman. (R.T. 28:7-10, Supp. R.T. 56:28-57:1; 84:15-17.) Robert is the second eldest of Florence's eight (8) children. There had been difficulties between Rose and Robert's family members over the years and, to the best of Rose's knowledge, Robert no longer maintained contact with his mother. [FN2] (J.A. 465, 482.)
FN2. Rose contends that Florence was estranged from Robert. Florence never presented her case-in-chief since the probate court granted her motion for judgment pursuant in accordance Code of Civil Procedure § 631.8. Thus, the fact that she enjoyed an ongoing relationship with Robert, unbeknownst to Rose, was not heard by the probate court.
On that fateful September 1993 evening, Robert had been drinking prior to driving to Lodi, where his pickup flipped off the on-ramp to Interstate 5. *4 (Appellant's Joint Appendix 461. ["J.A."]) He was found unresponsive by medical emergency personnel who transported him, unconscious, to San Joaquin General Hospital. He remained there until November 8, 1993 when he was transferred to Lodi Memorial Hospital -- West's Sub-Acute Unit, where he still resides. (J.A. 461-462.)
Robert remained comatose for approximately sixteen months. (J.A. 462.) Then he awoke and became gradually more responsive to his environment. (J.A. 462.) Upon regaining consciousness, Robert began receiving various therapies (speech, physical) and continued to receive food and water through a feeding tube. (J.A. 462.)
In early July 1995, Rose and Robert's treatment team agreed that Robert would participate in a three month program of intense therapies, designed to maximize his rehabilitative progress and abilities. (Supplement to R.T. 25:22-26:7.)
Shortly thereafter, the jejunostomy tube through which Robert received food and fluids became dislodged, as it had on three previous occasions. (Supplement to R.T. 27:4-22.) Rose determined that the feeding tube should not be reinserted, a decision that, if carried out, would cause Robert's death by dehydration. (Supplement to R.T. 71:16-25, 73:14-28.)
*5 Rose's decision was presented to and scrutinized by a medical ethics committee assembled at Lodi Memorial Hospital. [FN3] (Supplement to R.T. 31:23- 33:5; 74:1-18.) Florence was not aware that Rose had decided to end Robert's life, nor was she apprised that the Ethics Committee was convening or given an opportunity to present her contrary views. (Supplement to R.T. 78:20-79-2; 82:25-83:4.) Indeed, although Florence was visiting Robert at Lodi Memorial Hospital on a regular basis, she was utterly unaware of the fate that awaited Robert. (J.A. 016.) [FN4]
FN3. Both Rose and Robert relied upon the ethics committee's purportedly unanimous endorsement of Rose's decision to terminate her husband's treatment to bolster the correctness of Rose's decision to end Robert's life. (See Robert's Opening Brief, page 7; Rose's Opening Brief, pages 36, 41.) The probate court, in reliance upon Evidence Code § 1157, granted Lodi Memorial Hospital's Motion to Quash Respondent's subpoena commanding the appearance at trial of all members of that committee who participated in the committee's deliberations, and the production of all related documents. Florence argued to the Third DCA that, since she was denied the right to explore the deliberations of that group, it was wholly improper and manifestly unjust to allow the decision of that committee to bear any weight whatsoever in its decision. The Third DCA dismissed Florence's argument, stating, without citation to any authority, "[W]e see no basis for rejecting the evidence on this issue adduced at trial." (Decision at 555, fn. 8.)
FN4. In her testimony, Rose acknowledged her awareness of Florence's visits to Robert in the hospital:
Q. During the first 12 months at Lodi Memorial Hospital, would other members of his family, Robert's family, come to visit him from time to time?
A. Mike and his family went quite a bit. I understand that his mom came once a week with his Aunt Lila. One of the family members would bring her and Aunt Lila to the hospital, usually on a Saturday.
Q. Would you on occasion see them there on a Saturday?
A. For awhile there I would, but then -- and it was too stressful for the kids to go while they were there because I felt his mother had the right to see him alone since we go all the time. I come and go whenever I please. That that [sic] was her time with her son. That I let that be. And I don't -- try not to go to interfere in that time.
(Supplement to R.T. 54:4-17.)
At the time of trial, Florence was visiting her son approximately three times per week. (J.A. 477.)
*6 Were it not for an anonymous telephone call from (presumably) a member of the staff of Lodi Memorial Hospital, alerting Florence that Rose had directed Robert's feeding tube to be removed, thereby bringing about this death, Robert would have died in August 1995. (Wendland v. Superior Court (1996) 49 Cal.App.4 44, 47.) When Florence finally did learn of Robert's fate, she immediately sought the intervention of the San Joaquin County Superior Court and obtained a Temporary Restraining Order on August 3, 1995, prohibiting removal of Robert's feeding tube, pending further proceedings. (J.A. 013.)
After determining to discontinue delivery of Robert's life-sustaining food and fluids, and initiating this proceeding, Rose dramatically decreased the frequency of her visits with him. At the time of trial, Rose admitted that her only visits with Robert coincided with her appearances at the hospital for meetings with Robert's treatment team every four - six weeks. That pattern had been, by that time, in place for at least a year. (R.T. 138:11-139:14.)
Robert's daughter, Katie, admitted that she had not seen her father perform any tasks "that impressed me." (R.T. 1563:7.) In fact, on the day she testified, November 7, 1997, she learned for the first time that her father was able to propel *7 a wheelchair with his foot (R.T. 1563:28), and admitted under cross-examination that she wasn't interested in Robert's capabilities:
Q. Do you have any specific understanding of what things he is able to do?
A. No, and I don't care. He's not living the way he wants to live. So I don't care if he pushes a wheelchair or he lifts a peg or whatever because it's not going to change the whole scheme of things. He's not living the way he wants to live.
Katie also testified that she had not visited her father since the summer of 1996 (R.T. 1555:27-1556:1), because "it was very painful for me to see him because it wasn't him any more. To me it was a shell of a person, and in my mind he's really gone." (R.T. 1554:24-27.) Rose and her children insist that Robert does not recognize them. (Rose's Opening Brief, page 10.) Florence is confident that he does recognize her. (J.A. 470.)
The undisputed evidence and testimony introduced at trial by Rose and Robert's own witnesses conclusively demonstrated that, following his injuries, Robert progressed substantially in his recovery, from total unconsciousness to the point that he could perform a number of neurologically complex tasks: [FN5]
FN5. Robert's ability to perform the enumerated tasks is admittedly inconsistent, secondary to, inter alias, medical and behavioral issues. (J.A. 463, 477, 518.)
*8 1) Operating a manual wheelchair (using his left hand or foot) or an electric wheelchair with the use of a joystick; (J.A. 464, 492, 499, 518, Videotapes); [FN6]
FN6. References here are to the videotapes of Robert's therapy sessions which were lodged with the Third DCA in accordance with the probate court's Order and Stipulation Regarding Videotaping of Robert Wendland. (See J.A. 587-604.)
2) Throwing and catching a ball with his hand; (J.A. 462, Videotapes);
3) Kicking and stopping a ball with his foot; (Videotapes);
4) Working in a standing frame during which time he views himself in a mirror and is able to balance and right himself (with cues) for short periods of time, reaches for/grabs there-putty in response to cueing, etc. (J.A. 425, 428, 430, Videotapes);
5) Operating an augmentative communication device to give "yes" or "no" responses to questions; (J.A. 463, 467-468, 476, 518, 519);
6) Blinking with his eyes to respond to questions such as those listed above; (J.A. 462, 518);
7) Picking up brightly colored pegs or blocks and replacing them in a tray or handing them to a therapy assistant; (J.A. 462, 518, Videotapes);
9) Picking up specific numbers and handing them to a therapy assistant; (Videotapes);
*9 10) Turning pages, drawing circles and writing the letter "R" with his left (no dominant) hand, sometimes without assistance; (J.A. 444, 449, 450, 451, 457, 518);
11) Responding to verbal requests that he open his mouth and hold it open to allow oral care and hygiene; (J.A. 463, 477, Videotapes); and
12) Responding to verbal commands directed toward behavior management; (Videotapes).
In shockingly dehumanizing and demeaning terms, perhaps reflecting their own value judgments, but clearly not reflecting the law of this state, Rose's retained experts minimized and dismissed Robert's accomplishments, likening him to a "trained animal." (Robert is "being trained like an animal," [R.T. 792:27]; Robert is "being used like a trained animal ...'' [R.T. 793:2]; Robert interacted with his environment less than "some animals that I have a close friendship with." [R.T. 917:21-22.]) Equally disturbing was the Third Dacca’s adoption and tacit approval of those terms to describe Robert's abilities. ("Robert's activities constitute "a 'very low-level cognitive response' -- like a trained response where an animal or child is trained on a primitive level to perform an action in response to a direct specific stimulus." (Decision at 557 [[Emphasis added]).
By stipulation of the parties, the probate court proceeding was bifurcated. After extensive briefing and oral argument, Judge Bob W. McNatt made three legal rulings which formed the background for the second phase of the trial:
"1) The evidentiary standard in situations involving withdrawal of medical treatment from conscious but cognitively impaired persons should appropriately be "clear and convincing" evidence...
2) Where the incompetent person has left no explicit pre-incapacity instructions to handle such situations, and in the absence of unanimity of the family members, it seems appropriate to place the burden of producing evidence justifying the proposed actions on the party seeking to terminate the life of a patient who is not in a persistent vegetative state...
3) Previous California cases, while not exactly on point, give at lease some guidance in determining the appropriate standards for surrogate decision-makers in these matters. Both Drabick and Barber refer to a "best interests" standard to be applied but both also suggest that certain subjective elements, e.g., previously expressed wishes of the patient, etc., may be included in the decision-making process. That is the standard to be applied here."
(J.A. 152; see also Decision at 556.)
The second phase evidentiary hearing commenced on October 17, 1997. At the conclusion of Rose's case-in-chief, Florence brought a motion for judgment, pursuant to Code of Civil Procedure § 631.8, arguing that Rose had not sustained her burden of proof. The motion was denied without prejudice, subject to Florence's right to renew her request for judgment after Robert's court- appointed public defender concluded her case-in-chief. (R.T. 1954:3-17.)
*11 Upon the conclusion of the presentation of evidence by Robert's court- appointed counsel, Florence renewed her motion, asserting that, even taking into account the evidence presented by Robert's counsel, Rose had not sustained her burden of proof and judgment should be had in her favor. (R.T. 2452:25 - 2505:24.) The probate court agreed, granting Florence's motion and concluding the hearing on December 9, 1997. (R.T. 2506:6 - 2509:11.)
A. THE DECISION-MAKING STANDARD SET FORTH IN CALIFORNIA PROBATE CODE § 2355 FAILS TO PROVIDE ADEQUATE PROCEDURAL AND SUBSTANTIVE PROTECTIONS TO CONSERVATEES WHOSE LIVES MAY BE ENDED AS A RESULT OF MEDICAL DECISIONS MADE FOR THEM BY THEIR CONSERVATORS.
This case is literally a matter of life and death. Because of the ultimate and irreversible potential consequences for Robert, this proceeding raises crucial constitutional issues.
Florence maintains that the Court's analysis must, in accordance with controlling constitutional principles and in consideration of the grave consequences which are not susceptible of correction in the event of an erroneous decision, begin with a presumption in favor of the conservatee's right to continued life. Shockingly, the Third DCA did not agree with Florence, announcing three times within its Decision that it was not constrained to begin its analysis with a presumption in favor of life. "We thus conclude there should be no presumption *12 in favor of continued existence." (Decision at 577.) [FN7] The Third DCA also criticized Florence's posture in this proceeding, stating, "Florence's position ... assumes Robert wants to stay alive, an assumption we cannot share." (Decision at 565.)
7. In placing the burden of proof upon the conservator, the Third DCA stated that it did so "not because of any presumption favoring life,...'' (Decision at 577.)
Florence does not contend that a conservator may never vicariously exercise a conservatee's right to refuse medical treatment, thereby bringing about the conservatee's death. Rather, the decision-making standard for conservators enunciated by the Third DCA, applying § 2355, fails to assure to conservatees the adequate procedural and substantive safeguards mandated by both the United States and California constitutions. Constitutionally-decreed checks and balances dictate that, absent the conservator meeting his/her burden of proof, by clear and convincing evidence, the conservatee's right to life must supercede the conservatee's right to have a surrogate decision-maker vicariously exercise his/her right to make treatment decisions -- if that vicarious exercise would result in the conservatee's death. In other words, under the facts of this case, Robert's right to autonomy cannot be exalted over his right to life. The probate court correctly concluded that Rose had not met her burden of proof to show that her decision to terminate Robert's life- sustaining food and fluids was appropriate. [FN8]
Robert is protected by the substantive due process guarantees of the U.S. and California Constitutions. (U.S. Const. Amend. XIV, Section 1; California *13 Const. Art. 1, § 7.) These guarantees protect Robert's right to life, liberty, and property, and impose substantive limitations on their deprivation.
In Cruzan v. Director, Missouri Department of Health (1990) 497 U.S. 261 ("Cruzan''), the U.S. Supreme Court recognized that competent adult individuals have a Fourteenth Amendment "liberty interest" in refusing unwanted medical treatment. The Court stopped short of declaring that right "fundamental."
This Court has expressly declared that right to be fundamental, ruling that in California a "competent, informed adult, in the exercise of self-determination and control of bodily integrity, has the right to direct the withholding or withdrawal of life-sustaining medical treatment, even at the risk of death, ...'' (Thor at 744.) In the case of a competent adult, the right does not depend upon the nature of the treatment contemplated and is not "reserved to those suffering from terminal conditions." (Ibid.) In California, the right to determine the scope of one's own medical treatment is derived from privacy guarantees. [FN9] This court has not heretofore, however, as noted supra, confronted the questions posed in this proceeding concerning decision-making by a surrogate on behalf of a conscious, cognitively disabled individual. (Conservatorship of Drabick (1988) 200 Cal.App.3d, 200, 205 ["Drabick'']) held that "incompetent patients retain the *14 right to have appropriate medical decision made on their behalf." The Drabick court also recognized, however, that "to claim that [a conservatee's] 'right to choose' survives incompetence is a legal fiction at best." (Id. at 208.)
9. California Constitution, article 1, section 1 states: "All people are by nature free and independent and have inalienable rights. Among those are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." The Third DCA concluded that "the circumstances of this case also fall within the provision's right to enjoy and defend life." (Decision at 569, fn. 35.)
The Cruzan court cautioned that "we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself." (Cruzan at 286.) A conservator or other surrogate does not possess any liberty interest either on their own or on the conservatee's behalf. Nor does a California conservator, in fulfilling his/her duties, possess privacy rights flowing therefrom which are independent of or separate from the rights of the conservatee which the conservator exercises vicariously. (See Drabick at 211-212.)
An individual's Fourteenth Amendment right to life is indisputably fundamental and "the State needs a compelling interest to justify" depriving an individual of that right. (See Johnson v. Zerbst, 304 U.S. 458, 462 (1939); Furman v. Georgia, 408 U.S. 238, 359 n.141 (1972) (Brennan, J., dissenting)). The right to life is composed of both substantive and procedural components. Moreover, the State has a constitutionally-cognizable responsibility to act in accordance with an incompetent individual's best interests. (See Thompson v. Oklahoma (1988) 187 U.S. 815, 825 n.23 [Emphasis added].) Because, as noted supra, a court-appointed conservator's decision concerning termination of a conservatee's life-sustaining food and fluids implicates the conservatee's constitutional rights, the conservatee cannot be deprived of his/her right to life absent the strongest form of protections.
*15 Indeed, the exercise of the right to refuse life-sustaining treatment must be closely scrutinized and narrowly interpreted because, by rejecting the circumstances of living in a disabled condition, an individual choosing to die by starvation and dehydration rejects life itself. That choice constitutes a waiver of the fundamental right to life. (In re Westchester Co. Medical Center (1988) 72 N.Y. 2d 517, 614 n. 4 ["Westchester''].)
The Westchester court emphasized that "[w]aivers of constitutional rights are always carefully scrutinized by the court[.]'' Ibid. Indeed, according to the U.S. Supreme Court, "Courts indulge every reasonable presumption against waivers of fundamental constitutional rights." (Johnson v. Zerbst, supra, 304 U.S. 464 [emphasis added].)
And heightened scrutiny is particularly crucial when a surrogate raises the uncorroborated and contested claim of waiver on behalf of an incapacitated individual. The Cruzan court observed that the "differences between the choice made by a competent person to refuse medical treatment, and the choice made for an incompetent person by someone else to refuse medical treatment, are so obviously different that the State is warranted in establishing rigorous procedures for the latter class of cases which do not apply to the former class." (Cruzan at 287, fn. 12.)
The right to refuse medical treatment is not without limitation. This Court has also made clear that, "while fundamentally compelling, the right to be free from nonconsensual invasions of bodily integrity is not absolute." (Thor at 738; *16 see also In re Conroy (1985) 486 A.2d 1209, 1233. ["Whether based on common-law doctrines or on constitutional theory, the right to decline life-sustaining medical treatment is not absolute. In some cases, it may yield to countervailing societal interests in sustaining the person's life."].)
The state's countervailing interests are traditionally identified as 1) the preservation of life; 2) the prevention of suicide; 3) the interests of third parties, usually family members; and 4) the integrity of the medical profession. Thor at 738. Of those interests, "[t]he state's paramount concern is the preservation of life, which embraces two separate but related aspects: an interest in preserving the life of the particular patient and an interest in preserving the sanctity of all life." Ibid. [Emphasis added]. As noted supra, the Third DCA disregarded this principle and, in doing so, through its approval and application of § 2355 to the facts of this case, removed and circumvented the crucially important systems of checks and balances mandated by the federal and California constitutions, as will be demonstrated more particularly infra. In keeping with the state's "paramount" interest in preserving both the life of a specific conservatee and the sanctity of life as a whole, when a conservator makes a medical decision on behalf of the conservatee which will deprive that conservatee of his/her life, a decision for which, if incorrect, no remedial measure are available, heightened scrutiny of that decision and the process by which it was made must be undertaken by the judiciary.
*17 When an incompetent person's life-sustaining food and fluids are at issue, the state also a strong interest in protecting the incompetent person from potential conflicts of interest, protecting the individual's right to procedural due process, and in fulfilling its parens patriae duty to safeguard incompetent persons from abuse. When a conservator is vicariously exercising the incompetent's decision-making power, the interests of the state and individual are clearly complementary. In considering the state's role as protector, the Missouri Supreme Court observed that the informed consent doctrine
[a]llows the truly involuntary to be declared voluntary, thus bypassing constitutional, ethical and moral questions, and avoiding the violation of taboos. Third party consent is a miraculous creation of the law -- adroit, flexible and useful in covering the unseemly reality of conflict with the patina of cooperation.
(Cruzan v. Harmon (Mo., 1988) 760 S.W.2d 408, 426.)
Section 2355 provides that a conservator may consent to the administration or withholding of medical treatment for his/her conservatee as the "conservator in good faith based on medical advice determines to be necessary ...'' [FN10] (Indeed, Conservatorship of Drabick (1988) 200 Cal.App.3d 185 [["Drabick'']) held, and the Third DCA agreed that, in making a decision as to what course of action the conservator feels is appropriate for his/her conservatee, and to fulfill his/her duty to act "in good faith," the conservator need only "consider the available information relevant to the conservatee's best interests ...'' *18 (Decision at 563, citing Drabick at 216-218 [Emphasis added].) [FN11] This approach fails to adequately protect helpless and vulnerable conservatees such as Robert.
10. This portion of the statute remains unchanged under the 1999 re-enactment.
11. The 1999 revision of § 2355 provides that the conservator shall render "a decision in accordance with the conservator's determination of the conservatee's best interest." [Emphasis added]
Section 2355 is a highly unusual and unorthodox statute, a fact recognized and acknowledged by the Third DCA, which observed that
"the California standard articulated in Drabick is unconventional in its elevation of the of the objective best interests standard over the subjective wishes of the patient: 'The most unconventional approach taken to describe how the best interests standard should be applied to a particular case is that contained in the opinion of the California Court of Appeals in Drabick... The conservator is to be guided by his own conception of what is in the ward's best interests...'''
(Decision at 564, fn. 27, citing 1 Meisel, The Right to Die, (2d. ed. 1995) § 7.25, pg. 431, fns. omitted. [Emphasis added])
The Third DCA also recognized that Drabick, and its endorsement thereof, constitute a departure from the decision-making standard enunciated in Barber v. Superior Court (1983) 147 Cal.App.3d 1006 ("Barber"), i.e. that a surrogate decision-maker should, at the outset, be guided by "his knowledge of the patient's own desires and feelings, . ." (Barber at 1021.) Only if it is not possible to ascertain the choice that the conservatee would have him/herself made if competent to do so should the surrogate then make a decision based upon the conservatee's best interests. [FN12]
12. In the probate court, Florence urged the adoption of the purely subjective ""substituted judgment" decision-making standard. (See Florence's Appendix in Lieu of Clerk's Transcript, 32.) According to Meisel, the purely subjective standard requires "proof that the patient, if he were competent, would have made the same decision as the surrogate under the circumstances." (Decision at 564, fn 28.) The purely subjective standard was adopted by the Martin court. Florence did not argue in the Third DCA for adoption of the purely subjective standard. Rather, she asserted that, even under the decision- making standard enunciated by Judge McNatt, Rose clearly did not meet her burden to establish that Robert's best interests would be served by terminating delivery of his life-sustaining food and fluids. Additionally, Florence contended before the Third DCA, and reasserts herein, that Rose's decision was not and could not be founded upon "medical advice." (See further discussion infra.)
*19 A surrogate decision-maker, in choosing life over death, also waives, on behalf of his/her conservatee, the conservatee's fundamental right to refuse medical treatment, i.e. the conservator vicariously exercises the conservatee's right to autonomy. The Third DCA embraced Drabick's finding that, in order to preserve the individual's right to refuse treatment, the surrogate must be permitted to make a choice on behalf of the conservatee. (See Decision at 570, citing Drabick at 209, fn. omitted.) "We believe that having the choice made in her behalf produces a more just and compassionate result than leaving her with no way of exercising a constitutional right. [Citation.]'' (Ibid., citing Drabick at 209.)
Florence does not dispute this point. However, the decision-making standard of Drabick, as adopted by the Third DCA, fails to provide the strong protections mandated by both the federal and California constitutions, irrespective of whether the court's analysis is focused upon the conservatee's Fourteenth Amendment liberty interest (Cruzan) or the right to privacy embodied in both the U.S. and California constitutions (Art. 1, § 1; see also Thor and Decision).
*20 Inarguably, as demonstrated supra, a conservatee's decision to terminate his/her conservatee's life-sustaining food and fluids, thereby assuring the conservatee's death, constitutes a waiver of the conservatee's rights, whether analyzed and viewed as liberty, privacy, equal protection and/or due process rights. § 2355 does not provide for that rigorous scrutiny which must be correspondingly heightened as the conservatee's condition, under the unique circumstances of each individual case, moves farther and farther down a continuum away from the threshold status of a PVS, permanent unconsciousness or terminal illness. Indeed, once a court has appointed a conservator, the protective function of the judiciary is effectively removed. (See Drabick at 194, 195, fn. 7.) The conservator's Decision is reviewed only in the event of a dispute between interested parties concerning the appropriateness thereof or if the conservator seeks judicial review of the Decision. (Id. at 204.)
Under the standard enunciated in § 2355, when the probate court is drawn into a dispute among interested parties, such as the instant proceeding, or asked by a conservator to review the correctness of his/her decision, the entire thrust of the probate court's inquiries are shifted away from the conservatee's rights and interests, which is where the focus is constitutionally required, to the subjective, essentially unknowable, and ultimately undiscoverable motives of the conservator. Under § 2355, the conservator need not show that his/her decision is consistent with the conservatee's actual best interests. On the contrary, the crux of a probate court's inquiry and analysis will be the conservator's subjective *21 mental state. As the Third DCA observed: "Good faith, or its absence, involves a factual inquiry into the [conservator's] subjective state of mind." (Decision at 562, fn. 24, citing Knight v. City of Capitola (1992) 4 Cal.App.4 superth 918, 932.)
The Third DCA admitted the danger of this approach, even while approving it: "A subjective state of mind will rarely be susceptible of direct proof; usually the trial court will e required to infer it from circumstantial evidence." (Ibid., citing Knight v. City of Capitola, supra, 4 Cal.App.4 superth 918, 943.)
To repeat, the probate court's inquiry will be focused not on the fundamental rights and interests of conservatee whose life is at stake, but on the conservator and the conservator's subjective assessment of the conservatee's quality of life, the conservator's values-laden judgments about whether or not the conservatee's life is worth living, the conservator's motives in making the decision to bring about the conservatee's death, the conservator's decision- making process and avenues of inquiry, etc.
Indeed, an interested party who opposes the conservator's proposed course of action to adduce evidence not about the conservatee's medical condition, prognosis, previously expressed wishes or desires in the event of incompetency, or what course of action comports with the conservatee's actual best interests. Rather, any person who disagrees with the conservator's decision will be forced to literally put the conservator on trial.
*22 This is precisely the result which Florence warned the Third DCA against. Such litigation will waste precious judicial resources and be ugly, intrusive, demeaning, emotionally charged and excruciatingly trying for the litigants. Moreover, interested parties opposing proposed action by a conservator would be required to demonstrate that the conservator was not acting in "good faith," a nebulous standard, at best. Thus, examples of evidence which would have to be adduced include, inter alia, the financial consequences associated with the conservatee's death such as the existence, value of and beneficiaries of the conservatee's assets (e.g., life insurance policies), a conservator-spouse's reasoning for not simply divorcing the conservatee, rather than ordering the termination of treatment, and the participation by a conservator-spouse in extramarital relationships which might serve as motivation to terminate treatment.
The Third DCA brushed aside Florence's due process concerns, noting that "due process is accorded through the statutory procedures for appointment of a guardian and determination of incompetency." (Decision at 571; [Referencing Wisconsin's statutory scheme, the Third DCA stated, "[t]he same applies here."].) Plainly, the adjudication of a disabled individual as incompetent to make medical decisions for himself and the appointment of a conservator constitute the beginning, not the end, of the process of a surrogate's decision-making power and the concomitant potential for abuse of that power. [FN13]
13. Probate Code § 1800 governs the establishment of a conservatorship, while § 1801 pertains to the selection of a conservator. The Third DCA also overlooked the fact that § 1812 embodies a statutory preference for the appointment of a spouse to serve as an incompetent's conservator.
*23 The practical effect of the decision-making standard enunciated in § 2355 is that it will have a chilling effect on interested parties' willingness to step forward to challenge the proposed actions of conservators, thereby creating an avenue for abuse by conservators. Even though the burden of proof is ultimately upon the conservator, as drafted, § 2355 creates enormous evidentiary hurdles upon the party who is opposed to the conservator's decision, including the cost of marshalling the evidence and engaging in protracted, unsavory, and intrusive litigation, as well as the polarizing effect cases such as this have on families.
B. CALIFORNIA PROBATE CODE § 2355 DENIES TO A CONSERVATOR WHOSE LIFE MAY BE ENDED AS A RESULT OF A MEDICAL DECISION MADE ON HIS BEHALF BY HIS CONSERVATOR EQUAL PROTECTION OF THE LAW AND VIOLATES HIS LIBERTY INTEREST.
As interpreted by the Third DCA, § 2355 indisputably denies to persons such as Robert the liberty afforded them against arbitrary restrictions, as guaranteed by the Fourteenth Amendment. That liberty interest means more than "mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective." (Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 162 ("Valerie N.''), citing Bolling v. Sharpe (1954) 347 U.S. 497, 499-500.) The permissibility of the restriction must be justified by a "compelling state interest," and may be no broader than necessary to protect that interest. (Roe v. Wade (1973) 410 U.S. 113, 155.)
*24 Indeed, each individual is guaranteed the "personal liberty to develop, whether by education, training, labor, or simply fortuity, to his or her maximum economic, intellectual, and social level. That all persons may not seek to exercise this right in no way diminishes its importance...'' (Id. at 163.)
In operation, § 2355 results in a denial of equal protection to persons adjudicated incompetent to make their own medical treatment decisions. The equal protection clause of the U.S. constitution "requires that persons under like circumstances be given equal protection and security in the enjoyment of personal and civil rights... [The Clause] does not guarantee any minimum of protection, but merely requires that persons similarly situated receive equal treatment." (8 Witkin, Summary of Cal. Law (9 superth ed. 1988) Const. Law, § 593, pg. 44.) Article I, § 7(a) of the California Constitution prohibits the denial of equal protection of the laws.
The effect of both constitutions is the same. "[T]he test for determining the validity of a statute where a claim is made that it unlawfully discriminates against any class is substantially the same under the state prohibitions against special legislation and the equal protection clause of the federal constitution." (Los Angeles v. Southern Calif. Tel. Co. (1948) 32 C.2d 378, 389.)
Under the Third DCA's ruling, the conservator of a conscious, cognitively disabled conservatee may effectuate the termination of the conservatee's life- sustaining food and fluids merely upon a showing that the conservator considered "the conservatee's prior wishes and best wishes... [T]he court is merely to satisfy *25 itself that the conservator has considered the conservatee's best interests in good faith and has met the other requirements of section 2355." (Decision at 567 [Emphasis added].) The conservator is not required to establish, by clear and convincing evidence, that his/her decision to take steps to bring about the conservatee's death is consistent with the conservatee's actual best interests.
This Court ruled in Valerie N. (1985) 40 Cal.3d 143 ("Valerie N.'') that former Probate Code § 2356(d), absolutely prohibiting the sterilization of conservatees, "denie[d] incompetent developmentally disabled individuals rights which are accorded all other persons in violation of state and federal constitutional guarantees of privacy." (Id. at 148.) That denial was also deemed violative of "liberty interests protected by the Fourteenth Amendment to the United States Constitution,...'' (Id. at 160-161.) This Court found that competent individuals had a fundamental right to make procreative choices, including elective sterilization, which incompetent developmentally disabled persons were precluded from having made on their behalf by their surrogates decision-makers.
The Valerie decision noted that the rights implicated were indeed fundamental, therefore, "the permissibility of the restriction must be justified by a 'compelling state interest,' and may be no broader than necessary to protect that interest." (Valerie N. at 163, citing Roe v. Wade (1973) 410 U.S. 113, 155.) This Court explained that a conservator is permitted to exercise his/her own judgment as to the best interests of the developmentally disabled conservatee, with the exception of electing voluntary sterilization, but that the right of the conservatee *26 therein to choose to bear children had been taken from her "both by nature which has rendered her incapable of making a voluntary choice, and by the state through the powers already conferred upon the conservator." (Ibid.)
This Court adopted the standard set forth in Guardianship of Hayes (1980) 93 Wn. 2d 228, ruling that a conservator who advocates for sterilization of his/her conservatee bears the burden of demonstrating by clear, cogent and convincing evidence that sterilization is consistent with the conservatee's best interests. (Id. at 165.) The individual's right to privacy must not be needlessly invaded. "Substantial medical evidence must be adduced, and the burden on the proponent of sterilization will be to show by clear, cogent and convincing evidence that such a procedure is in the best interest of the retarded person." (Ibid.)
Note that this Court did not rule that the proper inquiry was whether or not a surrogate decision-maker had "considered'' the best interests of the retarded person, nor was sterilization allowed to take place in accordance with the best interests as perceived by a surrogate or in conjunction with the surrogate's subjective mental state. Rather, an actual showing of the conservatee's best interests was required under that decision, taking into account a variety of enumerated factors. (See Id. at 165-166.)
This Court challenged the Legislature to take action "to establish criteria and procedural protections" governing applications for authority to order that sterilization be performed and ordered that, in the interim, the procedures set forth in Probate Code § 2357 should be utilized." (Id. at 168.)
*27 Heeding this Court's advice in Valerie N., the Legislature boldly enacted Probate Code § 1950, et. seq. which not only codified the guidelines set forth in Valerie N., but, indeed, went much further: "The court may authorize the conservator to consent to sterilization only if the court finds that the petitioner has established, beyond a reasonable doubt, the existence of the facts set forth in section 1958." (Conservatorship of Angela D. (1999) 70 Cal.App.4th 1410, 1418, rehearing denied [Emphasis added].) The Fourth District Court of Appeal upheld the strict guidelines established in § 1958, even though that statute incorporates an evidentiary burden more stringent than that required by the Valerie N. court, as well as significant evidentiary hurdles such as a demonstration that the proposed method of sterilization is the least invasive available. "It is not the state's interest being protected here, but rather the interests of the disabled individual... [U]ltimately it is the conservatee who must be served by the statutes.'' (Id. at 423 [Emphasis added].)
This Court faces the same sort of dilemma it did when deciding Valerie N., but far more is at stake. The constitutional standards and considerations which applied to conservatees facing sterilization at the behest of their conservators is precisely the same issue the Court confronts herein. As in Valerie N., this Court must rule that § 2355 does not adequately protect conservatees threatened with death, based upon decisions made by their conservators, and fashion the appropriate remedy: The Court can and must declare § 2355 unconstitutional and leave to the Legislature the task of drafting a statute which conforms with both *28 federal and California constitutional requirements.
In light of the Third DCA's Decision, § 2355 is irrefutably unconstitutional because, in light of that ruling, a California conservatee's life may be ended merely by a clear and convincing showing that his/her conservator "considered" the conservatee's best interests, and in reliance upon the conservator's subjective mental state, rather than upon evidence that ending the conservatee's life is consistent with the conservatee's actual best interests. But an incompetent conservatee's ability to procreate may not be terminated except upon a showing that such action is, beyond a reasonable doubt, necessary and appropriate under the circumstances.
Additionally, Probate Code § 1954 requires that counsel representing a conservatee who may be sterilized "shall undertake the representation with the presumption that the individual opposed the petition." This standard must be compared with § 2355 which is silent as to the provision of counsel for a conservatee whose life may be ended at the direction of his/her conservator and Drabick's interpretation of § 2355. (Drabick 212-213. ["There is no authority in California law for requiring a permanently unconscious conservatee's attorney to oppose a petition that the attorney believes to be in the conservatee's best interests."].) [FN14] If counsel for a conservatee threatened with sterilization must *29 vigorously represent his/her client under a presumption that the conservatee opposes the procedure, a conservatee threatened with the deprivation of his/her fundamental right to life is entitled to no less zealous advocacy for that right. Of the two similarly situated conservatees, the individual facing sterilization is the recipient of greater protections and safeguards than is the conservatee whose life might be terminated as a result of a subjective decision to bring about that result.
14. Note the limitation placed upon counsel under the Drabick court's analysis -- counsel for a "permanently unconscious" conservatee is not required to oppose the petition of a conservator for approval of his/her decision to withhold the conservatee's life-sustaining food and fluids. "When the client is permanently unconscious, ... the attorney must be guided by his own understanding of the client's best interests. There is simply nothing else the attorney can do." (Drabick at 212.) The court left open the question of whether or not an attorney has an obligation to advocate for his/her client's stated preferences when the conservatee is able to communicate with counsel -- ""or independently determine and advocate the client's best interests. [[Citation.]'' (Ibid.) Also unanswered is the question of whether an attorney in a proceeding such as this, where Robert cannot speak but is irrefutably not ""permanently unconscious" or in a PVS, must advocate for his/her client's fundamental right to life or form his/her own opinion as to what course of action is consistent his/her client's best interests. Since learning that Robert's court-appointed counsel would advocate in this proceeding for his death, Florence has not challenged the appropriateness of his counsel's stance, but does wish to call this Court's attention to the fact that the issue has never been conclusively resolved in this state.
To provide greater legal protections against sterilization than death is to turn the overarching purposes of constitutional safeguards upside down. Moreover, the result infringes upon the liberty and privacy interests of California conservatees whose lives may be ended on a lesser showing than is required to sterilize other persons who have been adjudicated to make their own medical decisions.
This Court must ask itself which of two fundamental rights is more important: the right to life or the right to procreate. Florence asserts that, at a minimum, the right to life must certainly be equally as important as the right to *30 procreate. If so, the same constitutional safeguards which are afforded conservatees facing possible deprivation of the right to procreate, through sterilization techniques, inarguably must be available to conservatees facing possible deprivation of their right to life. Any other result would reduce the right to life from a fundamentally "paramount" state interest to a matter of near neutrality, thereby placing at grave risk, and discriminating against, those vulnerable citizens who most need constitutionally-based protections.
The Third DCA rejected Florence's argument on the ground that the heightened standard was codified in § 1958 because "the power to sterilize is subject to abuse and, historically, has been abused." (Decision at 574-5.) The Third DCA opined that the California "Legislature has not declared any particular potential for abuse in connection with a conservator's decision to withhold life-sustaining treatment from a conservatee." (Id. at 575.)
The Third DCA's dismissal of Florence's concern is not only shortsighted, it is incredibly naive. In cases such as this, in light of § 2355 and the Third DCA's failure to strike it as constitutionally unsound, the potential for abuse by conservators is clear, palpable and readily apparent. Because the Third DCA refused to declare § 2355 unconstitutional, this Court must and take a proactive stance before a pattern of abuse, documented through conservatees' gravestones, is allowed to be established.
*31 C. CALIFORNIA PROBATE CODE § 2355 IS UNCONSTITUTIONALLY VAGUE BECAUSE THE MEANING OF THE TERM "MEDICAL ADVICE," AS USED THEREIN, REQUIRES INTERESTED PARTIES AND THE JUDICIARY TO GUESS AS TO ITS MEANING AND APPLICATION.
"Medical advice" is not defined in § 2355. Florence has not located a concise, cogent definition of that term in any controlling case law. Accordingly, Florence contends that the term is unconstitutionally vague. A conservator must make medical decisions for his/her conservatee which are "based upon medical advice," thus, "medical advice" is a critical component of the conservator's decision-making standard and process.
The concept of vagueness is most often discussed within the context of criminal statutes, however, it is equally applicable in a noncriminal setting. "It is a well-settled principle of constitutional law that 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." (Cranston v. City of Richmond (1985) 40 Cal.3d 755, 763, citing Connally v. General Const. Co. (1926) 269 U.S. 385, 391.)
In addition to putting citizens on notice as to what standards of behavior are lawful so that they may conduct themselves accordingly,
"laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application."
*32 (Ibid., citing Grayned v. City of Rockford (1972) 408 U.S. 104, 108- 109, fns. omitted.)
The "root of the vagueness doctrine is a rough idea of fairness." (Ibid., citing Colton v. Kentucky (1972) 407 U.S. 104, 110.)
"All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears." (Smith v. Peterson (1955) 131 Cal.App.2d 241, 248.) Indeed, the court is not obligated to
"'consider every conceivable situation which might arise under the language of the statute... ,' so long as that language may be given '... a reasonable and practical construction in accordance with the probable intent of the Legislature': and encompassing the conduct of the defendants."
The United States Supreme Court has made clear that when a statute is challenged as being impermissibly vague with no First Amendment implications, that challenge "must be examined in the light of the facts of the case at hand." (Ibid. at 764, citing United States v. Mazurie (1975) 419 U.S. 544, 550.)
The Drabick court stated that "[t]he medical advice that will support a conservator's decision to forego life-sustaining treatment must include the prognosis that there is no reasonable possibility of return to cognitive and sapient life" (Drabick at 216 [Emphasis added].) The Third DCA rejected Drabick's reasoning in favor of questioning whether or not the conservatee will ever again be competent to make his/her own medical decisions. (Decision at 563, fn. 25.)
*33 Under the facts of this matter, that interpretation of "medical advice" places Robert at grave risk of being deprived of his constitutionally guaranteed rights and subject to an abuse of power by his conservator. Robert has no obligation to regain an ability to make his own medical decisions in order to continue exercising his fundamental right to life. Any conclusion to the contrary constitutes an abuse of power by his conservator and a denial of the protections afforded Robert under both the federal and California constitutions.
Robert's rights are also jeopardized by the fact that his conservator, under § 2355 and the Third DCA's interpretation thereof, is not bound to follow the ""medical advice" she receives. (See Decision at 560.) This also serves to deprive Robert and other conservatees the equal protection of the law because Probate Code § 1958, et. seq. requires the introduction of significant medical evidence before a conservatee may be sterilized, including, inter alia, that the conservatee is fertile and capable of procreation, (Conservatorship Angela D., supra, 70 Cal.App.4 superth 1420), and that the method of sterilization is the least invasive available. (Id. 1421.) That medical evidence not only must inform the conservator's decision to proceed with sterilization, but must be proven, as noted supra, beyond a reasonable doubt in a statutorily-mandated review hearing. (See Probate Code § 1958.) No such safeguards are afforded a conservatee whose conservator has made a subjective decision to bring about that conservatee's death "based upon medical advice," which the conservator has no obligation to follow.
Neither the Drabick nor Third DCA decision, nor § 2355, articulate the *34 parameters of and precise manner in which a conservator may satisfy his/her burden to demonstrate to the probate court that the medical decision reached on behalf of the conservatee was "based upon medical advice." [FN15] Both of those decisions, as well as the language of § 2355 fail to provide adequate guidance for probate courts faced with this issue, and leave troubling questions unanswered.
15. The Third DCA notes that "the purpose of seeking advice is to obtain information enabling the conservator to formulate a judgment about what is in the patient's best interest.'' (Decision at 560, citing Conservatorship of Morrison (1988) 206 Cal.App.3d 304, 309-310 [emphasis added].)
As discussed supra, in adopting the "good faith" decision-making standard, the Third DCA has alarmingly shifted the emphasis away from an analysis of what course of medical treatment is appropriate for and consistent with protection of the conservatee's rights and interests and toward judicial inquiry into the subjective mindset of the conservator in procuring, evaluating and, ultimately, accepting or rejecting "medical advice.''
Consistent with the Third DCA's ruling, is Robert's conservator required to rely upon advice from the medical community as to generally accepted treatment options? Or will the receipt of any "medical advice," however rogue, experimental or untested, be sufficient evidence that Rose has fulfilled her duty to terminate his life-sustaining medical treatment "in good faith"?
Florence contends that the "medical advice" component of the conservator's decision-making model should be viewed on a continuum much as are threatened deprivations of constitutional rights, i.e. the further away from the threshold condition of PVS, permanent unconsciousness or terminal illness the *35 conservator's is, more stringent and rigorous should be the scrutiny of the purported "medical advice" asserted by the conservator to have formed the basis for his/her medical decision.
The importance of this inquiry and the need for clarification, guidance and a workable definition of the term "medical advice" in this proceeding cannot be overemphasized. There do not exist today, nor did there exist in July 1995, when this proceeding was commenced, or at the time of the evidentiary hearing (1997) any medical guidelines, criteria, protocol or authority governing the withdrawal of life-sustaining food and fluids from a cognitively impaired, disabled patient such as Robert, i.e. a patient who is not in a PVS, permanently comatose or terminally ill. Thus, Florence maintains, as she did before the Third DCA, that Rose cannot meet her burden to demonstrate that she based her decision to order the cessation of Robert's life-sustaining food and fluids upon appropriate or proper "medical advice." Accordingly, the probate court's finding that Rose's decision was "based on medical evidence" was patently erroneous. (See J.A. 623.)
D. THERE IS NO PRECEDENT FOR AND § 2355 MAY NOT BE INTERPRETED TO ALLOW THE TERMINATION OF LIFE-SUSTAINING NUTRITION AND HYDRATION FOR PERSONS WHO ARE NOT IN A PVS, PERMANENTLY UNCONSCIOUS OR TERMINALLY ILL.
This is a matter of first impression in California, implicating the fundamental rights of California conservatees.
*36 The Third DCA, construing § 2355, found that statute lacks any "limitation on the type of treatment or on the medical condition of the conservatee (beyond the qualification that the conservatee must have been adjudicated to lack capacity to make his own decision). (Decision at 565.)
Given that this Court has not previously considered the questions raised in this proceeding, it is appropriate and proper for the Court to consider decisions rendered in by other High Courts which have grappled with the same issues. Moreover, due to the grievous harm which will result from an erroneous decision, there is a manifest need for this Court to follow the wise examples set by the Supreme Courts of other states.
While the statutory schemes of other jurisdictions may differ from California's, the rationales and public policy arguments offered by other tribunals for refusing to permit the withdrawal of life-sustaining food and fluids from conscious, interactive individuals are applicable in California and, specifically, to this proceeding.
1. MICHAEL MARTIN
The Michigan Supreme Court was among the first called upon to consider whether life-sustaining nutrition and hydration delivered via a feeding tube could be withheld from a conscious patent who was not in a PVS, but suffered from " a mixture of cognitive function and communication impairments that make it impossible to evaluate the extent of his cognitive deficits." (*37In re Martin (1995) 450 Mich. 204, 207 ["Martin''].) Michael Martin's condition was significantly similar to Robert's:
"... Michael sustained debilitating injuries in an automobile accident, with the most serious being a closed head injury affecting the bilateral hemisphere of his brain. The injuries significantly impaired his physical and cognitive abilities, left him unable to walk or talk, and rendered him dependent on a colostomy for defecation and a gastrostomy tube for nutrition."
(Martin at 208.) [FN16]
16. The two cases bear other striking factual similarities, as well, including the fact that the decision made by Mr. Martin's wife was challenged by his mother and sister. (See Martin at 208.)
The Michigan Supreme Court refused to his wife's request to terminate Michael's care, ruling that a surrogate decision maker may not authorize the removal of life-sustaining food and fluids from a conscious but incompetent patient absent clear and convincing evidence of the incompetent's preinjury statement(s) expressing a decision to refuse treatment under the present circumstances. (Martin at 233-234.)
The Third DCA did not consider Martin "helpful" to this case because no statute granting exclusive decision-making authority to a surrogate was in effect at the time Mr. Martin sustained injuries. Additionally, the statute later enacted allowed a surrogate to enact a decision which would bring about a patient's death only if the patient had expressed "in a clear and convincing manner that the patient advocate is authorized to make such a decision, that the patient acknowledges that such a decision could or would allow the patient's death." (Decision at 566-567, citing M.C.L. § 700.496, subd. (d).)
*38 The Third DCA relied upon the fact that "[n]o such qualification appears in the California statute under consideration (§ 2355) or any other California statute cited by the parties in the appeal before us." Id.
The Third DCA missed the point by focusing not upon constitutional requirements and the public policy considerations underlying the Martin, but, rather, upon the lack of statutory authority at the time Mr. Martin was hurt and Michigan's subsequently-enacted legislation.
2. EDNA M.F.
On June 12, 1997, the Wisconsin Supreme Court joined the ranks of state high courts which have considered the question of whether nutrition and hydration may be withheld from an incompetent patient who is not in a persistent vegetative state and did not, while competent, execute an advance directive. Like the other jurisdictions faced with this dilemma, responded with a resounding "no.''
In the Matter of Edna M.F., (Wis. 1997) 210 Wis.2d 557, 561 ("Edna") dealt with a 71-year old woman suffering from dementia caused by Alzheimer's disease. Although she was not in a persistent vegetative state, her condition was "not likely to improve." The Court described her as bedridden, but able to respond to stimulation from voice and movement, including "mildly noxious stimuli." She appeared alert at times, with her eyes open, and breathed without a respirator. (Id. at 560-561.) Edna's guardian sought permission to direct Edna's *39 physicians to withhold food and fluids, contending that her sister would not want to live in her current condition. (Id. at 562.)
The court held that "a guardian may only direct the withdrawal of life- sustaining medical treatment, including nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interest of the ward.'' (Id. at 572 [Emphasis added].) Relying upon its earlier decision in In re Guardianship of L.W. (1992) 167 Wis.2d 53, in which the court required a threshold determination that the incompetent patient was in a persistent vegetative state before a guardian could be permitted to direct the termination of treatment. [FN17]
17. "...this court stressed the fact that the opinion in L.W. 'is limited in scope to persons in a persistent vegetative state."D' (Id. at 566.)
One of the main reasons noted by the court for refusing the guardian's request was
"the fact that the American Academy of Neurology explains that people in a persistent vegetative state do not feel the pain or discomfort. (Citation omitted.) In the case at bar, Edna M.F. is not in a persistent vegetative state and could therefore likely feel the pain and discomfort of starving to death."
(Id. at 568 [Emphasis added].)
The court declined the invitation of Edna's guardian to abandon its bright- line rule and expand the authority granted to surrogate decision-makers to include incompetent patients
*40 "who are afflicted with incurable or irreversible conditions of health. We decline to go down this slippery slope, for the consequences and the confusion may be great."
(Id. at 568-569.)
Once again, the Third DCA imprudently rejected the wisdom of the Wisconsin court's ruling, finding the case "distinguishable" because "a Wisconsin statute prohibited withdrawal of nutrition/hydration if it would cause pain or discomfort, unless the pain and discomfort could be alleviated." (Decision at 567, citing Edna at 570, fn. 7.)
The Third DCA's dismissal of the sound reasoning of both the Michigan and Wisconsin courts is unfortunate and erroneous. There is a critical, fundamental and, indeed, crucial distinction between patients such as Robert, who are disabled, but conscious, able to interact with their environment and respond even inconsistently, to commands, and capable of volitional action, [FN18] versus patients in a PVS. The Third DCA even noted the difference:
18. Consider the testimony of Donald Kobrin, M.D., Robert's treating neurologist, noted by the Third DCA, that 'Robert does have a level of functioning that allows him to decide whether to follow commands, because he cooperates more frequently with some caregivers than with others." (Decision at 556.) Additionally, Rose herself, as noted supra, has contended since the inception of this proceeding that Robert deliberately dislodged his own feeding tube in an effort to communicate his desire to die. Assuming, arguendo, that Rose's assertion is accurate, Robert is not only capable of volitional action, he is capable of forming and expressing desires, wants and needs.
"A PVS patient has no mental functions. The eyes may be open at times, but the patient is 'completely unconscious, i.e., unaware of him[self] or herself or the surrounding environment. Voluntary reactions or behavioral responses reflection consciousness, volition, or emotion at the cerebral cortical level are absent.' [Citation.] The patient is incapable of experiencing pain and *41 suffering. [Citation.] PVS has been described as 'amentia, an absence of everything for which people value existence."D'
(Decision at 555, citing Conservatorship of Morrison (1988) 206 Cal.App.3d 304, 307.)
However, the key difference between conservatees such as Robert and those who are in a PVS is the ability to feel pain and to suffer. The Third DCA gave Florence's consternation about the manner in which Robert will die if Rose is allowed to direct that his life-sustaining food and fluids be withheld short shrift, choosing to focus upon "evidence the doctors could control the pain with medication." (Decision at 558, fn. 12.)
That evidence is extremely disturbing and alarming. Rose's retained expert, Dr. Ronald Cranford, insisted that the process of dying by dehydration and starvation is not "gruesome." (R.T. 542:13.) [FN19] However, by Dr. Cranford's own admission, there is no guarantee that Robert's pain and suffering as he dies by dehydration and starvation can be alleviated, stating that "it would be hard to know whether he's suffering or not" while dying." (R.T. 730:21-22.) Thus, Dr. Cranford testified that he would give Robert an "arbitrary dose of morphine, Ativan or Valium to keep him comfortable. And you have no way of knowing because you don't know how much he's suffering.'' (R.T. 731:2-4 [[Emphasis added.].) He also admitted that in the last few days, as Robert approached death, "I would probably put him into a coma." (R.T. 731:10-11.) Ironically then, in order to bring about Robert's death, Dr. Cranford would place him back into the *42 comatose state from which Robert emerged sixteen months after sustaining his injuries.
The Third DCA apparently failed to recognize or appreciate that this the ""slippery slope" in action which the Wisconsin Supreme Court warned about and the major reason why, in its Edna decision, that court emphatically reiterated its previously established bright-line rule. [FN20]
20. The Wisconsin court tacitly, if not expressly, gave its approval to that state's statutory scheme referenced by the Third DCA. (See Decision at 567.)
In concluding that application of § 2355 is "not limited to PVS patients," Decision at 565, the Third DCA adopted the "thoughtful analysis," Decision at 561, of the Sixth District Court of Appeal in Drabick, even though, at the time of trial, Mr. Drabick had remained in a PVS for five years with no hope of regaining consciousness. (Id. at 191.)
The Drabick decision was, as the Third DCA observed, limited by its factual underpinning and "expressly qualified in a footnote." (Decision at 565.)
"This opinion's reasoning is predicated upon it subject being a patient for whom there is no reasonable hope of a return to cognitive life. We have not considered any other case, and this opinion would not support a decision to forego treatment if this factual predicate could not be satisfied."
21. The Drabick court observed that health care providers rely upon Barber "presumably every day -- in deciding together with families to forego treatment for persistently vegetative patients ... '' (Drabick at 198 [[Emphasis added.].)
*43 Until the Third DCA rendered its Decision, no California court has ever ruled that a conservator may, consistent with § 2355, direct the cessation of his/her incompetent conservatee's food and fluids unless the conservatee were in a PVS or terminally ill. Florence contends that the reason why prior decisions emphasized the importance of the patient's PVS status is deceptively simple: They could not have predicted or foreseen cases such as Martin, Edna or the instant proceeding.
The point was obviously lost on the Third DCA, which rejected Florence's argument out of hand, stating that "[c]ase law reflects that the current situation (medicine maintaining life with artificial means) was not beyond the ken of the Legislature when it enacted section 2355 in 1979. (E.g., Matter of Quinlan (1976) 70 N.J. 10, 355 A.2d 647 [respirator and feeding tube].)" [FN22] The issue is not whether or not prior courts were aware of medical science to "maintain life with artificial means." The issue is whether or not the courts could have seen the population of patients whose lives are being ""maintain[ed] with artificial means ''expanded to include cognitively disabled patients who are not in a PVS or terminally ill.
22. The issue in the Quinlan case was not, of course, whether or not Karen Ann Quinlan's feeding tube could be removed but, rather, whether or not her respirator could be removed. (Cruzan at 270.)
Cruzan was decided on June 25, 1990, some two years after Drabick. The language of that decision contains no hint or suggestion that the Court foresaw the attempted withdrawal of life-sustaining food and fluids from an incompetent *44 patient not in a PVS by his/her surrogate decision-maker. Indeed, each and every case decided in California between the 1976 Quinlan case and the instant proceeding is silent as to the possibility of withdrawing life- sustaining food and fluids from a conscious, cognitively disabled conservatee such as Robert. The only mention of the concept of starving and dehydrating persons other than those who possess no cognitive function at all is found in Drabick's footnote 36, cited supra. Did the Drabick court consider the journey down the "slippery slope" that this case represents and the Martin and Edna courts cautioned against? Or did the Drabick court simply wish to emphasize that it was Mr. Drabick's permanent state of unconsciousness and ""absence of everything for which people value existence" which compelled that court's conclusion? (Conservatorship of Morrison, supra, 206 Cal.App.3d 304, 307.) The answer to that question will most likely never be forthcoming.
E. THE LEGISLATIVE HISTORY OF § 2355 FAILS TO SUPPORT THE THIRD DISTRICT COURT OF APPEALS' CONCLUSION THAT APPLICATION OF THE STATUTE IS NOT LIMITED OR CONSTRAINED BY THE CONSERVATEE'S MEDICAL CONDITION.
The Third DCA concluded that the language of § 2355 "contains no limitation on the type of treatment or on the medical condition of the conservatee." (Decision at 565.)
The revised § 2355 "specifies that 'health care decision' includes the withholding or withdrawal of artificial hydration and nutrition. (Stats. 1999, ch. 658, § § 12, 39 § 4617.)" (Decision at 578.) Prior enactment's of the statute were *45 silent on this point. The Third DCA interpreted this as an absence of any indication in the Legislative History of an intent to change, "rather than clarify the law as it had already been judicially construed." (Decision at 579.)
The 1999 re-enactment makes clear that the Legislature specifically intended to codify Drabick. (See Law Revision Commission Comment. ["As amended, subdivision (a) is consistent with...'' Drabick.].) And Drabick is explicitly limited by its factual underpinning, as expressed in fn. 36 of that decision: "This opinion's reasoning is predicated upon it subject being a patient for whom there is no reasonable hope of a return to cognitive life. We have not considered any other case, and this opinion would not support a decision to forego treatment if this factual predicate could not be satisfied."
The Legislature's codification of Drabick constitutes a deliberate acceptance of that decision's limited applicability. If the Third DCA's analysis of the Legislative history is accurate, it is patently clear that the court overstepped the bounds of the Legislature's purpose for re-enacting § 2355 in 1999 when it ruled that the statute places no limitations upon the type of treatment envisioned by the Legislature. The Legislative History lodged by Rose and Robert confirms this by the absence of any reference, hint, suggestion or assertion that § 2355 was ever envisioned, drafted, intended or enacted with the Legislature's understanding that it might someday be invoked to bring about the death by dehydration and starvation of a conscious, interactive, cognitively disabled conservatee such as *46 Robert. Any other interpretation of that Legislative History is patently lacking foundation.
The Third DCA correctly affirmed the probate court's ruling that a conservator may not direct that his/her conservatee's life-sustaining food and fluids be withheld, thereby surely bringing about the conservatee's death, unless the conservator satisfied his/her burden of proof by clear and convincing evidence.
However, the Third DCA erroneously concluded that the decision-making standard set forth in § 2355 provides adequate constitutional safeguards, checks and balances, and protection to conservatees such as Robert. The decision-making standard enunciated in § 2355 focuses not upon the best interests of the conservatee but, rather, concerns itself with the subjective mental state of the conservator. Thus, when an interested party objects to the conservator's proposed course of action, the interested party will be forced to essentially put the conservator on trial in order to explore the conservator's subjective state of mind and motivations for the decision he/she has made.
The U.S. and state constitutions dictate a different result. While a competent adult's right to refuse medical treatment has been declared fundamental in California, and that right presumably survives incompetence, that right must be weighed against the conservatee's fundamental right to life. The conservatee may not suffer a deprivation of his/her fundamental right to life, nor may the right to *47 refuse medical treatment be exalted over the competing right to life, absent the strictest and most rigorous scrutiny. The procedures and guidelines assuring that scrutiny are conspicuously absent from § 2355.
Moreover, in light of the Third DCA's decision in this proceeding, and the existing statutory framework governing conservatorships, a conservatee facing the possible deprivation of his/her fundamental right of procreative choice receives greater protection under the law than does a conservatee such as Robert threatened with the deprivation of his fundamental right to life. Robert's liberty interest is also infringed as a result of the Probate Code's contradictory and inconsistent provisions pertaining to sterilization and medical decision-making by conservators, as is his right to both substantive and procedural due process. A demonstrated history of past abuses do not justify such inequities, particularly when the risk to conservatees such as Robert is the gravest imaginable and an erroneous decision can never be remedied or rectified.
Given the lack of precedential authority in California for the proposition that § 2355 is not limited to patients in a particular medication condition, e.g. a PVS, it is necessary and appropriate to consider decisions from the highest courts of other jurisdictions and to look to those tribunals for guidance. Other states, faced with the issues this proceeding presents, have declined to start down the "slippery slope" by allowing a conservator to direct the cessation of life-sustaining food and fluids for a conservatee who is not, as a threshold determination, in a PVS, permanent state of unconsciousness, or terminally ill. Over and above the *48 fact that those state's statutory schemes differed significantly from California's this Court must take into account overriding public policy considerations, as well as critical medical distinction between a conscious, interactive person such as Robert who is inarguably capable of cognitive function as compared with a person in a PVS who cannot feel the pain and suffering associated with death by dehydration and starvation. Nothing in the Legislative History of this state supports an inference or conclusion that the Legislature ever intended § 2355 to be invoked in support of starving and dehydrating a disabled person such as Robert.
Finally, § 2355 fails to define or elucidate the term "medical advice" and, as used in that statute is, therefore, unconstitutionally vague.