Guardianship of L.W., Matter of

Page 60

482 N.W.2d 60

167 Wis.2d 53, 60 USLW 2651, 2 NDLR P 313

In the Matter of the GUARDIANSHIP OF L.W., Incompetent Paul J. LENZ, as Guardian ad Litem, Appellant-Cross Respondent, v. L.E. PHILLIPS CAREER DEVELOPMENT CENTER, Guardian Respondent-Cross Appellant Eau Claire County, Respondent and St. Francis Hospital, Respondent-Cross Appellant.

No. 89-1197.

Supreme Court of Wisconsin.

Oral Argument Sept. 4, 1991.

Opinion Filed April 1, 1992.

For the appellant-cross respondent there were briefs by Paul J. Lenz, Altoona, and James Bopp, Jr., Thomas J. Marzen, Mary N. Nimz, Daniel Avil and Deborah Gardner and The Center for the Medically Dependent and Disabled, Inc., co-counsel, Indianapolis, Ind., and oral argument by Paul J. Lenz.

For the respondent-cross appellant, L.E. Phillips Career Development Center, there was a brief by William G. Thiel, Eau Claire and oral argument by William G. Thiel.

For the respondent-cross appellant, St. Francis Medical Center, there was a brief by Daniel T. Flaherty, Ellen M. Frantz and Johns & Flaherty, S.C., LaCrosse and oral argument by Ms. Frantz.

For the respondent, Eau Claire County, there was a brief by Robyn S. Shapiro and Quarles & Brady, Milwaukee and Keith R. Zehms and Eau Claire County Corp. Counsel, Eau Claire and oral argument by Ms. Shapiro and Mr. Zehms.

Amicus curiae brief was filed by Craig L. Parshall and Richard D. Martin, Menomonee Falls, for The Rutherford Institute of Wisconsin.

Amicus curiae brief was filed by Helen Marks Dicks, Madison, for the Center for Public Representation.

Amicus curiae brief was filed by Jay Gold, M.D., and Medical College of Wisconsin, Madison and Gretchen E. Miller and ACLU of Wisconsin Foundation, Milwaukee, for the American Civil Liberties Union of Wisconsin Foundation and Wisconsin Bioethicists and other Health Professionals.

HEFFERNAN, Chief Justice.

This is an appeal taken on bypass pursuant to sec. 808.05, Stats., from a June 21, 1989 order of the circuit court for Eau Claire county, Gregory A. Peterson, Circuit Judge, granting L.E. Phillips Career Development Center, as guardian of L.W., the authority to consent to the withdrawal from L.W. of all life-sustaining medical treatment, including artificial nutrition and hydration. We affirm.

The issues in this case are whether an incompetent individual in a persistent vegetative state has a right to refuse life-sustaining medical treatment, including artificial nutrition and hydration, and whether a court-appointed guardian may exercise that right on the ward's behalf. We conclude that an incompetent individual in a persistent vegetative state has a constitutionally protected right to refuse unwanted medical treatment, including artificial nutrition and hydration, that a court-appointed guardian may consent to withdrawal of such treatment where it is in the "best interests" of the ward to do so, and that the guardian does not need the prior authority of the court, although that decision may be reviewed by the court at the instance of parties in interest. We stress that this opinion is limited in scope to persons in a persistent vegetative state.

The facts of this case are undisputed. On May 25, 1989, pursuant to sec. 880.33, Stats., L.E. Phillips Career Development Center, a not for profit corporation, was appointed guardian of the person and estate of L.W., a seventy-nine year old man. L.W. had a long history of chronic undifferentiated schizophrenia, and had been institutionalized since 1951. He had no close relatives or friends, and had never indicated his wishes concerning life-sustaining medical treatment to anyone. Evidence in the record indicates that L.W. may never have been competent.

On May 31, 1989, L.W. suffered a cardiac arrest. He was moved from the Fairchild Nursing Home to St. Francis Medical Hospital in La Crosse. Later that week, L.W.'s attending physicians informed the guardian that L.W. was in a chronic, persistent vegetative state. ¹ The physicians indicated that if L.W.'s condition did not improve within the following four weeks, they would request the guardian to consent to withdrawal of all life-sustaining medical treatment, including artificial nutrition and hydration, and thus occasion L.W.'s death. ²

On June 8, 1989, the guardian petitioned the circuit court for a declaratory judgment to determine whether either the guardian or the court had the authority to consent to such withdrawal. The court appointed Paul J. Lenz to act as guardian ad litem of L.W.. The guardian, guardian ad litem, St. Francis Hospital, and Eau Claire County all filed briefs in the trial court. ³ The court heard oral argument from the parties regarding the legal issues involved in a withdrawal decision. The court heard no testimony regarding L.W.'s actual condition or whether L.W. ever expressed his wishes regarding medical treatment.

The trial court in its memorandum opinion concluded that a guardian has the authority to consent to withdrawal of all life-sustaining medical treatment, including artificial nutrition and hydration, without prior court order or approval, if withdrawal is determined by the guardian to be in the ward's best interests. The court set forth twelve criteria to guide the guardian's best interests determination. ⁴ While we do not disagree with these criteria, we do not adopt them on this appeal for some are irrelevant to the record in this case.

The guardian ad litem appealed the trial court order, and the guardian and the Hospital cross-appealed. Helpful and detailed amicus briefs were filed by numerous organizations.

On February 3, 1991, while this appeal was pending, L.W. died of natural causes. Thus, to the extent that it can affect L.W. this action is moot. However, this court has recognized certain exceptions to the general rule of dismissal for mootness.

[T]his court has held that it will retain a matter for determination although that determination can have no practical effect on the immediate parties: Where the issues are of great public importance, State v. Seymour, 24 Wis.2d 258, 261, 128 N.W.2d 680 (1964); where the constitutionality of a statute is involved, Doering v. Swoboda, 214 Wis. 481, 253 N.W. 657 (1934); where the precise situation under consideration arises so frequently that a definitive decision is essential to guide the trial courts, Carlyle v. Karns, 9 Wis.2d 394, 101 N.W.2d 92 (1960); where the issue is likely to arise again and should be resolved by the court to avoid uncertainty, Fine v. Elections Board, 95 Wis.2d 162, 289 N.W.2d 823 (1980); or where a question was capable and likely of repetition and yet evades review because the appellate process usually cannot be completed and frequently cannot even be undertaken within the time that would have a practical effect upon the parties, In re Marriage of Sandy v. Sandy, 109 Wis.2d 564, 566, 326 N.W.2d 761 (1982).

State ex. rel. La Crosse Tribune v. Circuit Ct., 115 Wis.2d 220, 229, 340 N.W.2d 460, 464 (1983). The issue of an individual's right to refuse life-sustaining medical treatment (LSMT) is of great public importance, and is capable of repetition but likely to evade review. The number of courts which have resolved this issue despite the death of the concerned patient bears this out. See Rasmussen by Mitchell v. Fleming, 154 Ariz. 207, 214 n. 4, 741 P.2d 674, 681 (1987). Under the standards of La Crosse Tribune we exercise our discretion to address the merits and resolve the issues presented by the facts of this case.

The first issue presented is whether an incompetent individual such as L.W. has a right to refuse unwanted medical treatment. We conclude that an individual's right to refuse unwanted medical treatment emanates from the common law right of self-determination and informed consent, the personal liberties protected by the Fourteenth Amendment, and from the guarantee of liberty in Article I, section 1 of the Wisconsin Constitution.

In 1891, the United States Supreme Court stated unequivocally that individuals have a right to self-determination:

No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). Judge Cardozo expanded this notion to create the doctrine of informed consent:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages.

Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914). The logical corollary of the doctrine of informed consent is the right not to consent--the right to refuse treatment. Numerous courts have grounded the right to refuse treatment in whole or in part on the common law right to self determination and informed consent. See, e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied, 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153 (1981); and In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985).

The United States Supreme Court recently held that a competent individual has a protected Fourteenth Amendment liberty interest in refusing unwanted medical treatment. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841, 2851, 111 L.Ed.2d 224 (1990). The Court also assumed, but did not decide, that this liberty interest included the right to refuse artificial nutrition and hydration. Id. at 2852.

Article I, section 1 of the Wisconsin Constitution states:

All people are born equally free and independent, and have certain inherent rights; among these are life,...