New curbs placed on right to die

By Claire Cooper
Bee Legal Affairs Writer
(Published Aug. 10, 2001)

SAN FRANCISCO -- Ruling in the nation's leading right-to-die case, the California Supreme Court Thursday placed strict new limits on situations in which life support may be withdrawn from minimally conscious patients.

A relative or friend who wants to pull the plug must present "clear and convincing evidence" that the patient wishes to die or that death is in his or her best interests, the justices said in reversing a ruling by the 3rd District Court of Appeal in Sacramento.

Commentators said the unanimous opinion sent a message to Californians to put their end-of-life choices in writing while they can, or appoint someone to speak for them at the crucial time. Otherwise, said Michael Shapiro, an ethics expert at the University of Southern California law center, doubts will be resolved in favor of continuing life.

"The opinion is good news for the relatively small minority of Californians who actually give advance written directives ... but it's bad news for the majority of Californians who don't," said Jon Eisenberg, who represented a large group of physicians, hospitals and bioethicists in the case.

The decision applies only to life-or-death medical decisions and only to patients who are conscious -- not comatose or "vegetative" -- yet incompetent to speak for themselves, as Robert Wendland was when the case arose in 1995.

The victim of a 1993 driving accident, Wendland sometimes responded to simple commands or seemed aware of his surroundings but was unable to communicate, eat, drink or use a bathroom. In 1997 he indicated "yes" or "no" answers to a variety of simple questions but did not respond when asked, "Do you want to die?"

Since 1995, his wife, Rose, and their three children wanted to remove his feeding and hydration tube, saying that course was consistent with views he expressed before the accident. Robert Wendland's doctors and a hospital ethics panel approved the plan. But his mother, Florence Wendland, and sister challenged it in court.

Wendland died of pneumonia last month at 49, making moot the Stockton family's battle but leaving open the legal questions. Because of their importance to future cases, the Supreme Court pressed on to a decision that would have been a victory for Wendland's mother and sister.

Their lawyer, Janie Hickok Siess, said they were gratified by the conclusion, though "it would be much sweeter, obviously, if Robert were here." The opinion will be "his legacy," she said.

However, a tearful Rose Wendland said the court took one of life's most personal decisions away from wives and children and put it in the hands of people in "three-piece suits and black robes." She said, "I think it's a terrible decision."

Two prominent bioethicists, Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania, and George Annas, a professor of health law at Boston University, agreed with her.

"Courts should be listening to loving relatives who are the closest to the patient, whether to continue or stop care," said Caplan.

Annas said the court failed to listen to both Wendland's closest relative -- his wife -- and to independent professional assessments. Reading the opinion was "like being in a time warp from 25 years ago," before society began coming to grips with the right to die, he said.

James Braden, a lawyer appointed by the court to represent Robert Wendland, said, "I think it's fortuitous that he's passed on." Braden said the opinion turned state law upside down.

The opinion was applauded by the California ProLife Council. Its director, Brian Johnston, said, "There are tens of thousands of medically dependent individuals in California. If the law allowed them to be killed by dehydration whenever their conservator tired of them, no patient would be safe."

The opinion, written by Justice Kathryn Mickle Werdegar, amended a state statute that gives broad powers to conservators -- people like Rose Wendland who have been appointed by the courts to make medical decisions for others. The court said greater weight must be given to a conscious patient's constitutional right to life.

Because a decision to permit "starvation, dehydration and death" is irreversible, wrote Werdegar, it must be supported by strong evidence of the patient's wish to have life-sustaining treatment terminated.

The reasoning drew heavily on the U.S. Supreme Court's decision in 1990 in the case of Nancy Cruzan, which upheld the constitutionality of Missouri legal standards for terminating treatment of a woman in a "persistently vegetative state."

In that case the family was permitted to end life support despite the state's opposition.

While the federal courts have not addressed the issue of ending the life of a conscious patient, courts in Michigan, New Jersey and Wisconsin have done so, generally agreeing with the California ruling.

 

The Bee's Claire Cooper can be reached at (415) 551-7701 or ccooper@sacbee.com.