Today's News & Views

Dave Andrusko

The issue is starkly drawn. Either his wife can have his food and fluids discontinued leading to his death, or not. If the answer is yes, a severely brain-injured but undeniably conscious man will die a particularly ugly death.

As Tom Marzen explains in his brilliant background analysis found below, even though disabled people are routinely dispatched in our nation’s hospitals and nursing homes, there are in theory limits. Wendland v. Wendland would obliterate those boundaries.

If the patient is deemed either to have terminal conditions or be permanently unconscious, it’s been routinely held that withdrawal of fluid and fluids is in the patient’s "best interests."

However—and this is crucial—if the individual is neither permanently unconscious nor has a terminal condition, then food and fluids can only be withdrawn if he/she has left behind "clear and convincing" evidence that this is specifically what the patients would have wanted.

dave andrusko can be reached at dha1245@juno.com

 Wendland v. Wendland: Pressing the Euthanasia Envelope

National Legal Center for the Medically Dependent & Disabled, Inc.

The lives of virtually all the mentally incapacitated adults in the state of California literally hang in the balance, awaiting the decision of the California Supreme Court in a case that will determine whether Robert Wendland will continue to live or whether he will die by dehydration and malnutrition. All briefs have now been filed and the seven justices heard oral arguments yesterday. A decision is expected in the late summer or early Fall, followed by possible review by the U.S. Supreme Court of the case sometime next year.

Why is so much at stake in Wendland v. Wendland? To appreciate the magnitude we have to go back to a seminal 1973 case and trace we arc of subsequent case law.

In re Quinlan, the New Jersey Supreme Court held that the parent-guardian of Karen Ann Quinlan, a permanently unconscious young woman, could order withdrawal of the respirator that was believed to sustain Karen Ann’s life. Perhaps ironically, Karen unexpectedly continued to breathe on her own when the respirator was withdrawn. Withdrawal of nutrition and hydration was never an issue and Karen survived for another decade.

Meanwhile, the next phase of "right to die" litigation ensued. Almost exclusively, it concerned the use of tube feeding and hydration to sustain the lives of other patients like Karen Ann – patients who were deemed permanently unconscious and who were unable to swallow, so whose lives could only be sustained through the use of "artificial" methods of feeding and hydration.

These patients were said to be in a "persistent vegetative state" or "PVS," a condition in which it is claimed that patients are permanently unconscious, but nevertheless have sleep-wake cycles that sometimes mimic consciousness. PVS patients breathe on their own, but they cannot efficiently swallow. So their lives are sustained by "artificially"providing them food and fluids – often, simply four or five cans of Ensure a day that are poured or pumped through a plastic tube into their stomachs or small intestines.

Over the past three decades, in case after case and in state after state with only few exceptions, the courts have held that guardians of patients unable to make their own medical treatment decisions can legally order withholding or withdrawing of tube feeding/hydration from the patients. The result is death by dehydration and malnutrition. Only a few limitations on the authority of the guardians seemed to be recognized.

The courts empowered guardians to order withholding or withdrawing of tube feeding/hydration in the "best interests" of patients only if the patients were deemed either to have terminal conditions or to be permanently unconscious. If the affected patients had neither a terminal condition nor were permanently unconscious, then the tube feeding/hydration could be withheld or withdrawn only if the patients had left behind "clear and convincing" evidence that this is specifically what the patients would have wanted.

Thus, the Michigan Supreme Court held in In re Michael Martin that a wife-guardian could not order withdrawal of tube feeding/hydration from Mr. Martin, who has a head injury and mental disability as the result of a car-train accident. Mr. Martin was unable to make treatment decisions and unable to swallow, but he was not unconscious. He used a wheelchair effectively and enjoyed attending Detroit Tiger baseball games. Moreover, he had left behind no clear, convincing, or specific evidence that he would not want to be fed or hydrated under his present circumstances.

Likewise, the Wisconsin Supreme Court held in In re Edna Floss that the guardian of Edna Floss, a person with Alzheimer disease, could not withhold tube feeding/hydration from Ms. Floss unless she was deemed to be terminally ill or permanently unconscious – or unless Ms. Floss had left behind clear, convincing, and specific evidence that this what she had wanted.

Notably, soon after the Wisconsin Supreme Court rendered its decision, Ms. Floss’s guardian returned to the trial court with evidence that Ms. Floss’s Alzheimer disease had progressed to render her permanently unconscious. Her guardian was thus authorized by the trial court to order withdrawal of her tube feeding/hydration. Ms. Floss died shortly thereafter.

Enter the case of Robert Wendland.

In 1993, at the age of 42, Robert incurred a severe head injury as the result of an auto accident. He was in a coma until January 1995 and recovered through several levels of consciousness. He has since acquired abilities to operate a motorized wheelchair, to move himself in a manual wheelchair, to balance momentarily in a balance frame, to indicate "yes" or "no"on a communication board, to draw the letter "R," to paint, and to play wheelchair bowling. He is clearly not unconscious, but he also remains unable to make his own medical treatment decisions and requires tube feeding/hydration to continue to survive.

In mid-1995, Robert Wendland’s wife and conservator (guardian), Rose Wendland, asked a California trial court to authorize her to order withdrawal of Robert’s tube feeding/hydration. Robert’s mother, Florence Wendland, and his sister, Rebekah Vinson, objected.

The lower court denied the wife-conservator the power to order withdrawal of the tube feeding/hydration because she had not provided "clear and convincing" evidence that this would be Robert’s decision. However, the California Court of Appeal reversed.

The appeals court held that, even without clear and convincing evidence of patient intent, a conservator had the authority under California’s guardianship statute to order withholding or withdrawing of medical treatment, including tube feeding/hydration, unless it were shown that the conservator were acting in "bad faith" – that is, with an evil or invidious motive.

Because proving "bad faith" of a conservator is exceedingly difficult and because tube feeding/hydration is such a minimally burdensome form of treatment or care, the Court of Appeal decision essentially gives a green light to California conservators to order foregoing any and all forms of life-sustaining treatment and care from their mentally incapacitated wards. Conservators of older persons with the various forms of dementia, people with mental retardation or other disabilities or illnesses – virtually anyone unable to make their own treatment decisions – would thus be authorized to decline to feed/hydrate wards unable to swallow normally and to refuse other equally necessary and equally easy to provide forms of life-sustaining care for other wards with different disabilities.

People who were never able to make treatment decisions or who failed to leave behind clear and convincing evidence that they wanted to be fed and hydrated should they become unable to swallow normally would be at the mercy of whatever family member or stranger ended up being appointed their guardian.

A California Supreme Court decision that upheld the Court of Appeal would thus expose almost everyone in California who needs a guardian because of mental disability – tens of thousands of people – to the most obvious sorts of euthanasia-by-omission. Such a decision of the highest court of the state with the largest population in the nation might also influence the courts of other states to reach similar conclusions.

The apparent outer boundary of the authority of the guardian to order withholding or withdrawing of minimally burdensome treatment or care, such as tube feeding/hydration, would thus be expanded beyond "terminal condition" and "permanent unconsciousness" to embrace virtually all persons with mental disabilities. The law could effectively protect only those who once had the ability and foresight to publicly object to this form of euthanasia, and those whose guardians are plainly acting with evil motives.

On the other hand, a California decision that reversed the Court of Appeal would at least "hold the line" ; it would bolster the present rule that minimally burdensome forms of treatment or care, such as tube feeding/hydration, can only be withheld or withdrawn from mentally incapacitated persons if they are terminally ill or permanently unconscious or if they have left behind clear, convincing, and specific evidence that this is what they would have wanted.

Because so much is at stake from the perspective of people with mental disabilities and from the point of view of those who have been so anxious to permit people such as Robert Wendland to die, an appeal to the U.S. Supreme Court should be expected whatever the outcome in the California Supreme Court. Whether the U.S. Supreme Court would accept the case is unclear, although there appears to be a reasonable possibility of review especially if the California Supreme Court decides in a manner that places it in conflict with the Supreme Courts of Michigan and Wisconsin. And, in Wendland v. Wendland, the U.S. Supreme Court might well decide whether or not euthanasia-by-omission will become the law of the land.