C. (§10.14) Refusal of Treatment by Legal Representative or Parent
Many courts have repeatedly held that the rights afforded to a competent patient are not lost when the patient becomes incompetent.
If a putative decision by Karen [Quinlan] to permit this non-cognitive, vegetative existence to terminate by natural forces is regarded as a valuable incident of her right of privacy, as we believe it to be, then it should not be discarded solely on the basis that her condition prevents her conscious exercise of the choice.
In re Quinlan, 355 A.2d 647, 664 (N.J. 1976), cert. denied, 429 U.S. 922 (1976).
Although incompetency prevents a conscious choice from being expressed, it is not logical that the patient’s “protected, fundamental interest in the medical treatment decisions” that affect her is lost.
In re Conservatorship of Drabick, 245 Cal. Rptr. 840, 854 (Cal. App. 1988). As Drabick further noted:
While William[ Drabick]’s coma precludes his participation, it is still possible for others to make a decision that reflects his interests more closely than would a purely technological decision to do whatever is possible. Lacking the ability to decide, he has a right to a decision that takes his interests into account.
. . . .
Allowing someone to choose, however, is more respectful of an incompetent person than simply declaring that such a person has no more rights.
Id. at 855.
In Missouri, if a guardian has been appointed for a person, the guardian is required to act in the “best interest of the ward.” Section 475.120.2, RSMo 2000. Although “best interest” is not defined in that statute, it has been defined in the Durable Power of Attorney for Health Care Act, § 404.822, RSMo 2000, which states:
In making any health care decision in accordance with sections 404.800 to 404.865, the attorney in fact shall seek and consider information concerning the patient's medical diagnosis, the patient's prognosis and the benefits and burdens of the treatment to the patient. In withdrawing treatment, which withdrawal will allow the preexisting condition to run its natural course, the attorney in fact shall seek evidence of the medical diagnosis and the prognosis and the benefit and burden of the treatment to the patient to the extent possible within prevailing medical standards.
Clearly, this language reflects the policy of Missouri as to what constitutes “best interest.”
For some patients, there comes a time when it is evident that treatment is futile—the patient will never be cured or restored.
A guardian has the statutory authority to make medical decisions and consent to medical treatment or the withholding of medical treatment in the best interest of the ward without specific court authorization. In re Warren, 858 S.W.2d 263, 265 (Mo. App. W.D. 1993); see also In re Busalacchi, No. ED59582, 1991 WL 26851
(Mo. App. E.D. Mar. 5, 1991). Because a guardian is empowered and charged to act in the ward’s best interest under § 475.120, including the right to consent to medical treatment, this also includes the right to withhold consent. Warren, 858 S.W.2d at 265. The only limitation on the guardian’s authority is to withhold or withdraw artificial nutrition and hydration unless there is clear and convincing evidence that the ward would make...
