Thor v. Superior Court

Page 357

21 Cal.Rptr.2d 357

5 Cal.4th 725, 855 P.2d 375, 62 USLW 2071, 4 NDLR P 176

Daniel THOR, Petitioner, v. The SUPERIOR COURT of Solano County, Respondent Howard ANDREWS, Real Party in Interest.

No. S026393.

Supreme Court of California In Bank.

July 26, 1993.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Kenneth C. Young, Asst. Atty. Gen., Bruce M. Slavin, Morris Lenk, George D. Prince and Robert R. Granucci, Deputy Attys. Gen., for petitioner.

No appearance for respondent.

Steven Fama, under appointment by the Supreme Court, for real party in interest.

Catherine I. Hanson and Alice P. Mead as amici curiae.

ARABIAN, Justice.

More than a century ago, the United States Supreme Court declared, "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.... 'The right to one's person may be said to be a right of complete immunity: to be let alone.' [Citation.]" (Union Pacific Railway Co. v. Botsford (1891) 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734.) Speaking for the New York Court of Appeals, Justice Benjamin Cardozo echoed this precept of personal autonomy in observing, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body...." (Schloendorff v. Society of New York Hospital (1914) 211 N.Y. 125 [105 N.E. 92, 93], overruled on other grounds in Bing v. Thunig (1957) 2 N.Y.2d 656 [163 N.Y.S.2d 3, 143 N.E.2d 3].) And over two decades ago, Justice Mosk reiterated the same principle for this court: "[A] person of adult years and in sound mind has the right, in the exercise of control over his body, to determine whether or not to submit to lawful medical treatment." (Cobbs v. Grant (1972) 8 Cal.3d 229, 242, 104 Cal.Rptr. 505, 502 P.2d 1.)

Although seemingly categorical, these pronouncements predate the recent rapid advancements in medical technology with their attendant ethical, moral, and social implications. Illnesses and injuries that once brought the clergy to the bedside of the afflicted now may bring a team of highly skilled medical personnel fully equipped with sophisticated, life-preserving machinery. Increasingly, the courts are drawn into the wake of this technological progress to mediate among the myriad concerns it has generated.

Here, we must determine whether the right to "exercise of control over [one's] body" is sufficiently broad to permit an individual to decline life-sustaining treatment, even if to do so will cause or hasten death. Drawing upon the wisdom and insight of the courts preceding us into this sensitive territory, we approach our undertaking with caution and humility, fully appreciative of the profound considerations, both philosophical and personal, at issue. After due deliberation, we hold that under California law a competent, informed adult has a fundamental right of self-determination to refuse or demand the withdrawal of medical treatment of any form irrespective of the personal consequences. Under the facts of this case, we further conclude that in the absence of evidence demonstrating a threat to institutional security or public safety, prison officials, including medical personnel, have no affirmative duty to administer such treatment and may not deny a person incarcerated in state prison this freedom of choice. (Pen.Code, § 2600.)

I.

Real party in interest Howard Andrews (Andrews) is confined to the California Medical Facility at Vacaville serving a life term. On May 24, 1991, Andrews jumped or fell from a wall while in prison, fracturing a cervical vertebrae and rendering himself a quadriplegic. As a result, he lacks any physical sensation or control of his body below the shoulders. The condition is irreversible. Medical personnel must assist in the performance of all bodily functions, and Andrews must cooperate with them during his feeding and the administration of medication.

Petitioner Daniel Thor (petitioner) is a licensed physician attending Andrews as a staff member of the medical facility at Vacaville. Petitioner alleges that since October 11, 1991, Andrews "has intermittently refused to be fed," causing severe weight loss and threatening his health. He also has refused necessary medication and treatment for his general care. Consequently, he is at substantial risk of death due to possible pulmonary emboli, starvation, infection, and renal failure. Staff psychiatrists have examined Andrews and found him depressed about his quadriplegic condition but mentally competent to understand and appreciate his circumstances.

On November 22, 1991, petitioner initiated an ex parte proceeding in the superior court seeking an order allowing him to use a gastrojejunostomy tube or percutaneous gastrostomy tube to feed and medicate Andrews notwithstanding his refusal to consent to such procedures. ¹ The court ruled as a matter of law that Andrews had a right to refuse medical intervention under the facts alleged. Petitioner sought a writ of mandate in the Court of Appeal, which appointed counsel for Andrews and solicited responsive pleadings. Counsel filed a demurrer and answer, admitting the substance of the factual allegations but asserting Andrews's right to make decisions regarding his care and treatment and denying any intention to engage in a hunger strike as alleged by petitioner. ²

The Court of Appeal summarily denied the petition but provided a statement of reasons. Relying on Bouvia v. Superior Court (1986) 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (Bouvia ) and Bartling v. Superior Court (1984) 163 Cal.App.3d 186, 209 Cal.Rptr. 220 (Bartling ), the court concluded Andrews "had a right to refuse unwanted medical treatment, including sustenance." We granted review to address these transcendent issues of statewide importance. ³

II.

Petitioner posits a duty to force-feed and provide other nonconsensual treatment as he deems appropriate and necessary because, although competent, Andrews is subject to his custodial care as a state prisoner. ⁴ (Estelle v. Gamble, supra, 429 U.S. at p. 104, 97 S.Ct. at p. 291; Cal.Code Regs., tit. 15, § 3351.) Unless permitted to provide such care, petitioner fears he could be subject to possible civil and criminal liability. Andrews counters that regardless of his status he has the right to refuse treatment even if the refusal may hasten his death, and his decision must prevail over any interest asserted by petitioner. (See generally Bouvia, supra, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297.)

Penal Code section 2600 provides in part that a prisoner "may ... be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public." Accordingly, to resolve this conflict we must initially remove it from the prison context and determine whether Andrews would otherwise have the right to prevent petitioner from administering any medical procedure to which he has not consented, irrespective of the personal consequences.

A.

Until recently, the question of a patient's right to refuse life-sustaining treatment has implicated potentially conflicting medical, legal, and ethical considerations. The developing interdisciplinary consensus, however, now uniformly recognizes the patient's right of control over bodily integrity as the subsuming essential in determining the relative balance of interests. (See In the Matter of Farrell (1987) 108 N.J. 335 [529 A.2d 404, 410-412] and cases cited.) This preeminent deference derives principally from "the long-standing importance in our Anglo-American legal tradition of personal autonomy and the right of self-determination." (In re Gardner (Me.1987) 534 A.2d 947, 950; see Rasmussen v. Fleming (1987) 154 Ariz. 207, 215-216, 741 P.2d 674, 682-683; Satz v. Perlmutter (Fla.Dist.Ct.App.1978) 362 So.2d 160, 162, affd. (1980) 379 So.2d 359; Brophy v. New England Sinai Hospital, Inc. (1986) 398 Mass. 417 [497 N.E.2d 626, 633] (Brophy ); In the Matter of Farrell, supra, 108 N.J. 335 [529 A.2d at p. 410].) As John Stuart Mill succinctly stated, "Over himself, over his own body and mind, the individual is sovereign." (Mill, On Liberty (1859) p. 13.) ⁵

The common law has long recognized this principle: A physician who performs any medical procedure without the patient's consent commits a battery irrespective of the skill or care used. (Estrada v. Orwitz (1946) 75 Cal.App.2d 54, 57, 170 P.2d 43; Valdez v. Percy (1939) 35 Cal.App.2d 485, 491, 96 P.2d 142; Schloendorff v. Society of New York Hospital, supra, 211 N.Y. 125 [105 N.E. at p. 93]; see Union Pacific Railway Co. v. Botsford, supra, 141 U.S. at p. 252, 11 S.Ct. at p. 1001; Mohr v. Williams (1905) 95 Minn. 261, 104 N.W. 12, 14-15, overruled on other grounds in Genzel v. Halvorson (1957) 248 Minn. 527, 80 N.W.2d 854, 859; Prosser on Torts (4th ed. 1971) § 18, pp. 104-106; Rest.2d Torts, § 49.) As a corollary, the law has evolved the doctrine of informed consent. (See Cobbs v. Grant, supra, 8 Cal.3d at pp. 239-241, 104 Cal.Rptr. 505.) "Under this doctrine, 'the patient must have the capacity to reason and make judgments, the decision must be made voluntarily and without coercion, and the patient must have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and the prognosis.' [Citations.]" (Rasmussen v. Fleming, supra, 154 Ariz. 207, 216, 741 P.2d 674, 683.)

While the physician has the professional and ethical responsibility to provide the medical evaluation upon which informed consent is predicated, the patient still retains the sole prerogative to make the subjective treatment decision based upon an understanding of...