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Conservators Can't Choose Death
Court wants clear evidence of conscious conservatee's desires in matters of life, death

By Mike McKee
The Recorder
August 10, 2001


Justice Kathryn Mickle Werdegar
Photo: Jason Doiy
A unanimous California Supreme Court refused Thursday to expand conservators' authority to make life-and-death decisions, saying life support for conscious yet severely disabled individuals could not be terminated without clear and convincing evidence of their desires.

Although California courts have long allowed conservators to terminate life support for those who are terminally ill or in a persistent vegetative state, the high court balked at extending that authority to include individuals who are conscious but unable to express their own wishes.

"In this case, the importance of the ultimate decision and the risk of error are manifest," Justice Kathryn Mickle Werdegar wrote for the court. "So too should be the degree of confidence required in the necessary findings of fact."

The 6-0 ruling, which had been anxiously awaited by disability groups and right-to-die advocates nationwide, came 23 days after Robert Wendland, the man at the heart of the case for nearly seven years, died in a Central Valley hospital. The court chose to go ahead with a ruling, saying Thursday that the case "raises important issues about the fundamental rights of incompetent conservatees to privacy and life, and the corresponding limitations on conservators' power to withhold life-sustaining treatment."

With Thursday's ruling, the court essentially chose to hold the line by not authorizing conservators to pull the plug on people who might possibly have some awareness of the consequences. It also made it clear that the court's decision only affects conscious conservatees who left no formal health care directives.

"Our conclusion," Werdegar wrote in Conservatorship of Wendland, 01 C.D.O.S. 6867, "does not affect permanently unconscious patients, including those who are comatose or in a persistent vegetative state, persons who have left legally cognizable instructions for health care, persons who have designated agents or other surrogates for health care or conservatees for whom conservators have made medical decisions other than those intended to bring about the death of a conscious conservatee."

Wendland became incapacitated in 1993 in a truck wreck. Two years later, his wife, Rose, took steps to end her husband's life by having doctors at Lodi Memorial Hospital West remove his feeding tube. But Wendland's mother, Florence, and a sister, Rebekah Vinson, blocked Rose by going to court.

Rose Wendland maintained that her husband, who left no advance written directives, had told her and others on at least two occasions that he never wanted to be kept alive artificially. But Wendland's mother and sister said there was no proof that was true.

Rose Wendland had argued that, as her husband's conservator, she had the authority to end life support if she felt it was in Robert's best interests and was based on sound medical advice. She also argued that she should have to prove Robert's wishes only by the lesser standard of preponderance of the evidence.

The court disagreed strongly on the latter point.

"When the legal premise of a conservator's decision to end a conservatee's life by withholding medical care is that the conservatee would refuse such care," Werdegar wrote, "to apply a high standard of proof will help to ensure the reliability of the decision.

"The decision to treat is reversible," she wrote later. "The decision to withdraw treatment is not."

In reaching its conclusion, the high court expressly rejected arguments that Probate Code Section 2355 requires conservators to follow conservatees' wishes if known, and sets preponderance of the evidence as the standard of proof.

"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," Werdegar wrote, "creates a serious risk that the law will be unconstitutionally applied in some cases, with grave injury to fundamental rights [to privacy and life]."

That holding directly conflicts with the state Legislature and the California Law Revision Commission, which reorganized the Probate Code last year.

"They're saying, 'We don't believe the Legislature knew what it was doing,' " San Francisco lawyer James Braden, who represented Robert Wendland's interests, said Thursday. "What they are concluding is that it's [the court's] job to err on the side of keeping a guy alive. They are just legislating."

Jon Eisenberg, who represented the interests of six health care groups and 43 individual bioethicists in asking the court not to limit conservators' authority, agreed.

"When you go to the statute book and see a Law Review Commission commentary to a statute, that is a reliable indicator of legislative intent," Eisenberg, of counsel in the Oakland office of Encino's Horvitz & Levy, said. "I think this court was strongly influenced by the justices' perceptions of Robert's medical condition, and unfortunately that perception, which was based on a 1990 record, was inconsistent with 2001 reality."

Rose's attorney, Lawrence Nelson of San Francisco, called the opinion a "travesty." For Californians "who either don't get around to or don't know about appointing an agent to make medical decisions for them, this opinion could trap them in a nursing home or a hospital for weeks, months, years or decades."

Janie Hickok Siess, the Lodi lawyer who represented Wendland's mother and sister, said Thursday that Braden, Nelson and Eisenberg are making a big deal out of nothing.

"The legislators can say what they want," she said. "But if the law doesn't pass constitutional muster, the judiciary has every right to strike it down."

Siess also said that although the victory is marred by Wendland's recent death, she and others feel he didn't die in vain.

"[The ruling] means that other people in this state will be spared not only the possibility and potential eventuality of dying by dehydration and starvation," she said, "but that other families will not have to go through this kind of long, drawn-out court battle."

Eisenberg said, however, that the estimated 80 percent to 85 percent of Californians who haven't filed advance written medical directives should rush out and find a lawyer right away.

"My advice is you had better put it in writing," he said. "Because that's the key in California to having your end-of-life wishes honored."

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