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August 10, 2001


Justices Demand Proof of Impaired Patients' Wishes

By John Roemer
Daily Journal Staff Writer

        SAN FRANCISCO - Caregivers cannot end an incompetent patient's life without "clear and convincing" evidence that death is his wish or in his best interest, the California Supreme Court declared Thursday.
        The unanimous ruling in the widely watched right-to-die case of Robert Wendland sets a high standard for medical decisionmakers when severely impaired but conscious patients cannot express a choice.
        Wendland died in a Lodi hospital of pneumonia July 17 while the high court deliberated. Nonetheless, the court said it was issuing an opinion in his case because it involves "important issues about the fundamental rights" of incompetent persons to privacy and life and to provide guidance for future cases.
        Justice Kathryn Mickle Werdegar's opinion in Conservatorship of Wendland, 2001 DJDAR 8425, stressed that the court's interpretation of Probate Code section 2355 is limited in scope.
        "We emphasize, however, that the clear and convincing evidence standard does not apply to the vast majority of health care decisions made by conservators under section 2355," she wrote.
        Excluded from the decision's effect are permanently comatose patients and those who have left clear medical directives or appointed health care surrogates, Werdegar pointed out.
        Thursday's ruling means that, under the California Constitution's right to privacy provisions, as interpreted by the appellate courts, only competent, informed adults can chose to die by refusing or demanding the withdrawal of medical treatment. Conservatorship of Drabick, 200 Cal.App.3d 185 (1988) and Barber v. Superior Court, 147 Cal.App.3d 1006 (1983).
        Wendland made no advance arrangements and was minimally conscious, though badly brain-damaged, until his death. His level of awareness and cognitive functioning was unclear.
        Wendland's wife Rose, who wished to remove his feeding and hydration tube and allow him to die, argued that a lower preponderance-of-the-evidence standard should govern cases involving the profoundly impaired whose disability stops short of a persistent vegetative state.
        By that standard, the courts might have approved ending Wendland's life because of statements he made before the 1993 solo truck rollover accident that left him partly paralyzed and unable to speak, eat or care for himself.
        Wendland's wife, daughter and brother testified he told them before the accident he would not want to live if he were seriously impaired.
        Despite some improvement after the accident Wendland remained deeply disabled, doctors reported to the court. Evidence of his feelings included his striking and biting caregivers.
        "He never experiences joy," one expert noted. "He only experiences negative emotions."
        A 20-member ethics committee at Lodi Memorial Hospital agreed with Rose Wendland's decision, as his wife and conservator, to end her husband's life.
        The case became a clash over the right-to-die after Wendland's mother and sister objected to the plan to withhold food and water.
        "This turned into a strange battlefield in the choice wars," observed Jon B. Eisenberg, an Oakland lawyer for physicians and medical ethicists who entered the case as amici on Rose Wendland's side.
        The objectors retained Lodi attorney Janie Hickok Siess, who was funded by an anti-abortion group, the Life Legal Defense Foundation, and joined by Not Dead Yet, an organization of disability rights advocates.
        Siess said the foundation paid her former firm, Brown, Hall, Shore & McKinley of Stockton, more than $200,000.
        "I didn't get a penny of it. Most of my work has been pro bono," she said.  Siess now works as a staff counsel for the state Department of Fair Employment and Housing in Sacramento.
        "This case is not part of my real gig [for the] state," Siess said.
        Amy Hasbrouck of Boston's Disability Law Center, who works with Not Dead Yet, called the collaboration with right-to-lifers an odd one.
        "It was curious and personally difficult to be on the same side with people who would not permit a pregnant woman to choose an abortion," she said. "They don't understand our position of liberating people with disabilities, and we don't understand them."
        Even so, the groups jointly contended that allowing a conscious man to die would be a first step on a slippery slope leading to the deaths of the disabled, the elderly and the unwanted.
        "Taken to an extreme, it would let conservators withdraw life from any incompetent conservatee," Hasbrouck said.
        The high court evidently agreed. Wrote Werdegar: "To interpret section 2355 to permit a conservator to withdraw artificial nutrition and hydration from a conscious conservatee based on a finding, by a mere preponderance of the evidence, that the conservatee would refuse treatment creates a serious risk that the law will be unconstitutionally applied in some cases, with grave injury to fundamental rights."
        The decision upholds San Joaquin County Probate Judge Bobby W. McNatt, who granted judgment for the objectors after hearing Rose Wendland's arguments in favor of withdrawing treatment.
        Rose Wendland did not meet her burden of showing by clear and convincing evidence that in his present state, her husband would want to die, the judge held.
        McNatt was reversed by a Sacramento appeals court, which ruled Rose Wendland should not be required to prove her husband's wishes. Instead, she should simply have to show she had taken his best interests into consideration, the appellate panel concluded.
        The lawyer for Rose Wendland, San Francisco sole practitioner Lawrence J. Nelson, attacked the Supreme Court's decision.
        "This was a sloppy review of the record, which clearly shows Mr. Wendland can in no way make meaningful decisions," Nelson said Thursday. "The court has little appreciation for the pain and suffering caused by tethering people with tubes and wires."
        Nelson, a bioethicist with a Ph.D. in philosophy as well as a law degree, called the opinion insulting to his client because it appears to ignore her long relationship with her husband.
        "She was his wife for over 20 years," he said. "Yet the opinion reads as if she were a stranger to him. There are at least 10 places where they talk about her proposal to end his life or bring about death. They make it sound like this was an execution. But the goal was not to make Mr. Wendland dead. The goal was to refuse treatment that did him no good."
        Backing Rose Wendland's position during the litigation were two lawyers appointed by the court to represent her husband, along with amici including the California Medical Association, the San Francisco Medical Society, the California Healthcare Association and Catholic Healthcare West.
        In addition, 43 individual bioethicists from across the country signed on to the brief drafted by Eisenberg and David S. Ettinger of Horvitz & Levy, a firm with offices in Oakland and Encino.
        The clear and convincing evidence standard "would unjustifiably infringe the right to refuse medical treatment by demanding unattainable certainty about a patient's subjective wishes and values," the brief said.
        "The bottom line is you'd better go out and sign an advance directive or appoint a surrogate if you care about end-of-life decisions," Eisenberg said Thursday.
        "The court seems to think their opinion will have the salutary effect of persuading more people to do just that. I hope they're right, but I'm not optimistic. Most people don't structure their lives around the requirements of the law."