Advance Directives _08-34_

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					                   WHO
                SPEAKS FOR
                  ROBERT
                WENDLAND ?

        The Latest Chapter in the Law of
  Life-Sustaining Medical Treatment Decisions
                                   By Gere B. Fulton and Donald E. Saunders, Jr.
The technological developments of the                       the following:

last third of the 20th century resulted in                    Medical technology has effectively created a twilight zone of
dramatic changes in medicine’s ability                        suspended animation where death commences while life, in
                                                              some form, continues. Some patients, however, want no part
to rescue the critically ill and/or injured                   of a life sustained only by medical technology. Instead, they
from what might previously have been                          prefer a plan of medical treatment that allows nature to take
                                                              its course and permits them to die with dignity. (Cruzan,
inevitable death and to sustain their                         1990, p. 271, citing to the Arizona Supreme Court in Rasmussen
lives under conditions which, to many,                        v. Flemming).

might seem to be of questionable desir-                        While both Brennan and the court he quoted so approv-
ability.                                                    ingly were confronted with treatment decisions for patients
                                                            who were permanently unconscious, the dilemma over
  It was, no doubt, mindful of this that the late William   whether or not to treat has since been raised for patients
Brennen, while an associate justice of the United States    with various stages of dementia that fall short of the
Supreme Court, began his opinion in the Cruzan case with    vegetative state.

22 PUBLIC POLICY & PRACTICE   OCT. - DEC. 2001
     Landmark cases, beginning with Quinlan in 1976,               Rose immediately petitioned the court for appointment
created an interest in advance directives1 and led ultimately   as Robert’s conservator6 with authority to “…withdraw
to the passage of laws such as the South Carolina Death with    and/or withhold medical treatment and/or life-sustaining
Dignity and Health Care Power of Attorney Acts. However,        treatment, including, but not limited to, withholding nutri-
in spite of many well-publicized stories about families         tion and hydration” (Wendland, 2001, p. 5). The petition
caught in crises concerning the proper treatment decisions      was opposed by Florence and Rebekah. After a hearing, the
for incapacitated loved ones, the majority of our citizens      court appointed Rose as conservator but reserved judg-
have not created such documents for themselves (Institute       ment on her request to remove the feeding tube. The court
of Public Affairs, 2001).2                                      ordered continuation of the current plan of physical therapy
     The purpose of this paper is to review a recent Califor-   for 60 days and to report back to the court on Robert’s
nia case and its potential implications for South Carolin-      status at the end of that period.
ians.                                                              After the 60-day period elapsed without significant im-
                                                                provement in Robert’s condition, Rose asked again for
THE WENDLAND CASE                                               authority to remove the feeding tube. When the court
On September 29, 1993, while driving at high speed under        denied his mother’s and sister’s request to appoint inde-
the influence of alcohol, Robert Wendland rolled his truck      pendent counsel for Robert and the Court of Appeals
in a single-vehicle accident. Injury to his brain left him      summarily denied their petition for a writ of mandate (to
conscious yet severely disabled, both mentally and physi-       compel the trial court to do so), the California Supreme
cally. Since he was unable to swallow, both food and water      Court reviewed the case and transferred it to the Court of
were administered by tube.3                                     Appeals, which then directed the trial court to appoint
   For several months after the accident Robert was totally     counsel. The appointed counsel, exercising his indepen-
unresponsive. During this time his wife, Rose, visited him      dent judgment, supported Rose’s decision.
daily, often with their children, and authorized treatment         When the case proceeded to trial, the court held that
as necessary to maintain his health. Although he eventually     Rose would be allowed to withhold artificial nutrition and
regained consciousness to the point where he could “throw       hydration only if that would be in Robert’s best interest,
and catch a ball, operate an electric wheelchair with assis-    taking into account any pertinent wishes that he may have
tance, turn pages, draw circles, draw an ‘R’ and perform        expressed before becoming incapacitated. The court also
two-step commands,”4 he remained severely disabled.             determined that Rose would have to prove the facts justify-
   After Robert regained consciousness, Rose authorized         ing her decision by “clear and convincing” evidence.
surgery three times to replace dislodged feeding tubes.            At trial the testifying physicians agreed that Robert
When physicians sought her permission a fourth time, she        would not likely experience further cognitive recovery. His
declined. By this time Robert had been unconscious for          treating physician testified that, to the highest degree of
nearly two years and she believed that he would not have        medical certainty, Robert would never be able to make
wanted to continue living under these circumstances. She        medical treatment decisions, walk, talk, feed himself, eat,
discussed the decision with her three daughters and with        drink, or control his bowel and bladder functions. There
Robert’s brother Michael, all of whom believed that Robert      was also medical testimony that described him as being in
would not have approved the procedure even if necessary         a “minimally conscious state in that he does have some
to sustain his life. Rose also discussed the decision with      cognitive function” and having the “ability to respond to his
Robert’s treating physician, other physicians, and the          environment,” but not to “interact” with it “in a more
hospital’s ombudsman, all of whom apparently supported          proactive way” (Wendland, 2001, p. 7).
her decision. A nasogastric feeding tube was inserted to           Robert’s wife, brother and daughter recounted pre-
keep Robert alive pending input from the hospital’s ethics      accident statements Robert had made concerning his atti-
committee.                                                      tude toward life-sustaining health care. The first occasion
   The 20-member ethics committee unanimously approved          was Rose’s decision whether to turn off a respirator sustain-
Rose’s decision. The committee did not speak with Robert’s      ing the life of her father, who was near death from gan-
mother, Florence, or sister, Rebekah in the course of their     grene. She recalled Robert saying: “I would never want to
deliberations. His mother learned, apparently through an        live like that, and I wouldn’t want my children to see me like
anonymous telephone call, that the nasogastric tube was to      that and look at the hurt you’re going through as an adult
be removed. They applied for a temporary restraining            seeing your father like that.” On cross-examination, Rose
order to prevent this, and the probate court granted the        acknowledged that Robert said on this occasion that her
motion ex parte5.                                               father “wouldn’t want to live like a vegetable” and “wouldn’t


                                                                                          PUBLIC POLICY & PRACTICE   OCT. - DEC. 2001 23
want to live in a comatose state” (Wendland, 2001, p. 8).           deprivation to her brain from the interactive effect of
     Robert developed a serious drinking problem after his          alcohol and tranquilizers and was left in a state of perma-
father-in-law’s death and, when counseled by his brother            nent unconsciousness, later to become known as the
about what could happen if he were involved in a serious            “persistent vegetative state” (PVS). Although her doctors
traffic accident he replied: “If that ever happened to me, you      agreed there was no likelihood of recovery to a “cognitive,
know what my feelings are. Don’t let that happen to me.             sapient state,” her parents’ request to remove her from the
Just let me go. Leave me alone” (Wendland, 2001, p. 9).             ventilator that was then thought to be sustaining her
His daughter, Katie, testified that he said “if he could not be     breathing, and with it her life, was refused by her physi-
a provider for his family, if he could not do all the things that   cians. Although the trial court ruled against stopping
he enjoyed doing, just enjoying the outdoors, just basic            treatment, a unanimous (7-0) New Jersey Supreme Court
things, feeding himself, talking, communicating, if he could        held that Karen’s constitutionally-protected right to refuse
not do those things, he would not want to live” (Wendland,          treatment survived her loss of decision-making capacity
2001, p. 9).                                                        and that if her parents and the hospital ethics committee
     The court found that Rose “had not met her duty and            agreed that there was no likelihood of her recovery, the
burden to show by clear and convincing evidence that                ventilator could be withdrawn without any fear of civil or
[Robert], who is not in a persistent vegetative state nor           criminal liability.
suffering from a terminal illness would, under the circum-               In the twenty-five years since Quinlan we’ve learned
stances, want to die. [She] has likewise not met her burden         that (1) the court confused the role of the ethics committee7
of establishing that the withdrawal of artificially delivered       with that of a prognosis committee8, ( 2) that most patients
nutrition and hydration is commensurate with [Robert’s]             in a PVS are capable of breathing without a ventilator—
best interests….” The court further found that Rose had             Karen Ann lived on for nearly a decade without regaining
acted in good faith and would permit her to remain as               consciousness before she died in 1985—and (3) that even
conservator, but she would have no power to direct the              more contentious treatment decisions were yet to come.
removal of nutrition and hydration.                                      Although it was not the first court to grapple with the
     Rose appealed the lower court decision and the Court           question of feeding tubes, the United States Supreme Court
of Appeals reversed. Following this reversal, the California        decision in the Cruzan (1990) case is quite likely the most
Supreme Court granted review. Amicus curiae (Friend of              important. Like Karen Ann Quinlan, Nancy Cruzan was a
the Court) briefs in support of Rose were submitted to the          young woman (age 25) who had been left permanently
Supreme Court by the Alliance for Catholic Health Care, the         unconscious due to oxygen deprivation to her brain result-
California Healthcare Association, the California Medical           ing from a single-car accident. When it became apparent
Association, Catholic Healthcare West, Mercy Healthcare             that she wasn’t likely to recover, her parents—like those of
Sacramento, the San Francisco Medical Society, and 43               Karen Ann—sought to discontinue the treatment that was
Individual Bioethicists. Opposing briefs were submitted             sustaining her life. Unlike Karen Ann, however, Nancy was
for the Coalition of Concerned Medical Professionals, the           breathing without assistance. The treatment that was
Ethics and Advocacy Task Force of the Nursing Home                  sustaining her life was a tube that had been implanted into
Action Group, the National Legal Center for the Medically           her stomach through which she was being fed and hy-
Dependent & Disabled, Inc., and a number of disability              drated. Since Nancy was being “treated” in a state facility,
rights groups.                                                      the parents were opposed by the State of Missouri as
    Robert Wendland died of pneumonia several weeks                 represented by the state’s Attorney General.
after oral arguments had concluded. Although the court                   Although the parents prevailed at the level of the
might have dismissed the case as moot, they chose to issue          Probate Court, that decision was reversed by the Missouri
a decision because it represented an issue that was capable         Supreme Court (Cruzan, 1988). It was subsequently ap-
of repetition and might otherwise evade review. On August           pealed to the U. S. Supreme Court which, by a 5 to 4
9, 2001, the State Supreme Court unanimously (6-0) re-              decision, held that the State of Missouri could, as a requisite
versed the decision of the Court of Appeals.                        for removing Nancy’s treatment, require that it be proved
                                                                    by clear and convincing evidence9 that this is what she
THE CONTEXT                                                         would choose to do were she able to decide. The court
Wendland is the latest in a line of cases tracing back to the       refused to draw a distinction between artificial nutrition
New Jersey Supreme Court’s decision in the dispute grow-            and hydration and other forms of medical treatment. Shortly
ing out of the treatment of Karen Ann Quinlan (Quinlan,             after the decision the Cruzan’s presented the Probate Court
1976). Karen Ann, then 21-years-old, had suffered oxygen            with additional evidence of Nancy’s wishes regarding life-


24 PUBLIC POLICY & PRACTICE   OCT. - DEC. 2001
                                                                        linger in gravely debilitated states…, which they would al-
sustaining medical treatment. The court held that the
                                                                        most surely have wanted to avoid. (Cantor, 2001, p. 190).
burden of proof had been satisfied and the feeding tube was
removed.
                                                                         Although the Wendland decision does not apply to the
     Referring to public opinion polls which demonstrated
                                                                     “more typical” cases where the patient is either terminally
that the vast majority of Americans would not choose to
                                                                     ill or permanently unconscious, California has now joined
have their lives maintained under circumstances such as
                                                                     Missouri, New York, Michigan and Wisconsin, among the
Nancy was in, the Cruzan dissenters argued that the only
                                                                     minority of states adopting—at least in some circum-
legitimate interest of the State of Missouri was in safeguard-
                                                                     stances—the more restrictive clear and convincing evi-
ing the accuracy of determining her wishes. Here, they
                                                                     dence standard.
claimed, the state had failed to do so. The state had
established a high standard of proof (clear and convincing           ENTER ADVANCE DIRECTIVES
evidence) to rebut the assumption that Nancy would have
declined treatment, but no proof was required to support             One of the immediate effects of the Quinlan case was a
a finding that the incompetent person would wish to                  stimulation of interest in advance directives. The concept
continue treatment.                                                  of a living will had been proposed years before Quinlan but
     Rather than continuing to treat Nancy, contrary to the          living will legislation had yet to be passed in any state.
wishes of her parents, when firm evidence of the patient’s           Additionally, without the assurance of statutory immunity,
wishes is absent, the dissenters would have established a            healthcare providers were uneasy about withholding or
presumption in favor of the family. The majority acknowl-            withdrawing life-sustaining treatment from patients who
edged that while close family members might well have                lacked decision-making ability. California, responding to
strong feelings about the decision, “there is no automatic           the publicity surrounding the Quinlan case, was the first to
assurance that [their] view will necessarily be the same as          enact such a law (Fulton & Metress, 1995, pp. 119-121).
the patient’s would have been had she been confronted                      Although commendable for “going first,” there were a
with the prospect of her situation while competent (Cruzan,          number of serious problems with the new law. First,
1990, p. 4399).                                                      although stimulated by Quinlan, it applied only to the
     To this, Justice Harry Blackmun commented in his                “terminally ill,” a diagnostic group quite distinct from the
dissent:                                                             permanently unconscious. Second, it required a waiting
                                                                     period of two weeks after a diagnosis of terminal illness
   I cannot quarrel with this observation. But it leads only to      before a living will could be created. This would further
   another question. Is there any reason to suppose that a State     have limited the usefulness of living wills to only those who
   is more likely to make the choice that the patient would have
                                                                     (1) had decision-making ability at the time of the diagnosis
   made than someone who knew the patient intimately? To ask
   this is to answer it. As the New Jersey Supreme Court observed:   and (2) retained it throughout the waiting period. The
   “Family members are best qualified to make substituted            number of patients who could meet those qualifications
   judgments for incompetent patients not only because of their      was obviously limited.
   peculiar grasp of the patient’s approach to life, but also              These shortcomings were eliminated from many of the
   because of their special bonds with him or her …. It is...they
                                                                     advance directive laws that were passed by the various
   who treat the patient as a person, rather than a symbol of a
                                                                     states in subsequent years. The best of those laws broad-
   cause.” (Cruzan, 1990, p. 4933).
                                                                     ened the qualifications for a “qualified” patient and added
     Although the U. S. Supreme Court held that the State            provisions for naming a surrogate decision-maker by grant-
of Missouri was not constitutionally constrained from using          ing a healthcare power of attorney. Still others included a
the clear and convincing standard of proof if it wished to do        provision for identifying the appropriate decision maker
so, other states were free to use the more traditional               where the patient, now unable to act, had failed to antici-
standard in civil cases, the preponderance of the evidence.          pate this loss of decision-making capacity. California, in
Cantor has recently described the clear and convincing               fact, recently enacted such legislation which was “inter-
standard as “harsh and imprudent.”                                   preted” by the California Supreme Court in Wendland.
                                                                           Section 2355 of the California statutes became effective
   Although well intended, the requirement of clear and con-
   vincing evidence of the now-incompetent patient’s wish to         on July 1, 2000. While significantly broadening the rights
   withdraw life support represents a harsh and inhumane             that had been acknowledged under the earlier versions of
   constraint on end-of-life decision-making. Very few people        California’s living will and durable power of attorney for
   articulate their prospective wishes with the precision de-        healthcare legislation, it specifically addressed the matter
   manded by the few courts following this standard. The             of failure to create an advance directive.
   consequence … is that many individuals have been forced to


                                                                                               PUBLIC POLICY & PRACTICE   OCT. - DEC. 2001 25
 Another way of ensuring that one's wishes will be respected is
to appoint a trusted relative or friend to represent them under a
                power of attorney for health care.
    The new law, which was based upon the Uniform                possible, as the conservator here urges, that an incompe-
Health-Care Decisions Act adopted in 1993 by the National        tent and uncommunicative but conscious conservatee might
Conference of Commissioners on Uniform State Laws,               perceive the efforts to keep him alive as unwanted intrusion
states that: “If the conservatee has been adjudicated to lack    and the withdrawal of those efforts as welcome release. But
the capacity to give informed consent for medical treat-         the decision to treat is reversible. The decision to withdraw
ment, the conservator has the exclusive authority to give        treatment is not. The role of a high evidentiary standard in
consent for such medical treatment to be performed on the        such a case is to adjust the risk of error to favor the less
conservatee as the conservator in good faith based on            perilous result” (Wendland, 2001, p. 35, emphasis added).
medical advice determines to be necessary…” (Wendland,                 The court sought support for such a conclusion from
2001, p. 22).                                                    the majority opinion in the Cruzan case. Writing for a
     The Law Revision Commission, in explanatory com-            divided court, Chief Justice Rehnquist opined: “An errone-
ment, noted that “the [evidentiary] standard is by prepon-       ous decision not to terminate [treatment] results in a
derance of the evidence. Proof is not required by clear and      maintenance of the status quo; the possibility of subse-
convincing evidence” (Cal. Law Revision Com. Rep. as             quent developments such as advancements in medical
cited in Wendland, 2001, p. 28, emphasis added). In              science, the discovery of new evidence regarding the patient’s
dismissing the significance of this, the court opined that       intent, changes in the law, or simply the unexpected death
“one may legitimately question whether the legislature can       of the patient despite the administration of life-sustaining
fairly be assumed to have read and endorsed every state-         treatment at least create the potential that a wrong decision
ment in the commission’s 280-page report on the Health           will eventually be corrected or its impact mitigated. An
Care Decisions Law” (Wendland, 2001, p. 28).                     erroneous decision to withdraw life-sustaining treatment,
     Robert’s mother and sister had argued that if the law       however, is not susceptible of correction” (Wendland,
were to be construed to permit Rose to authorize with-           2001, p. 36 citing Cruzan at p. 28).
drawal of Robert’s feeding tube based on the less rigorous             But what if Robert Wendland’s wishes were otherwise?
standard cited by the Commission it would be unconstitu-         For whatever reasons might have been peculiar to him,
tional. The court, finding merit in this objection, reached      what if he would have chosen death over such severe
a “compromise” that might easily have come from the pen          disability? What if his wish to avoid prolonged existence
of Lewis Carroll. They interpreted the statute as requiring      under such circumstances were to be based on his own
“…clear and convincing evidence of a conscious                   concept of personal dignity? The kind of memory of him
conservatee’s wish to refuse life-sustaining treatment when      that he wanted to leave with his family? The wish to spare
the conservator relies on that asserted wish to justify          his family exactly the same kind of distress that they were
withholding life-sustaining treatment. This construction         now going through? Or even the wish to avoid impoverish-
does not entail a deviation from the language of the statute     ing his loved ones by paying for the kind of treatment that
and constitutes only a partial rejection of the Law Revision     he, and they, viewed as providing no benefit to him? Should
Commission’s understanding that the preponderance of             the ability to eschew life-sustaining medical treatment
the evidence standard would apply; we see no constitu-           under such circumstances be limited only to those who had
tional reason to apply the higher evidentiary standard to        left “clear and convincing evidence” of their intent? Or, in
the majority of health care decisions made by conservators       the words of Justice Stevens, writing in dissent in the
not contemplating a conscious conservatee’s death”               Cruzan case, should a person’s constitutional right to be
(Wendland, 2001, p. 29).                                         free from unwanted medical treatment be “…categorically
     The California Supreme Court seemed to recognize            limited to those patients who had the foresight to make an
that some people, contemplating a situation such as Robert’s,    unambiguous statement of their wishes while competent?”
might regard it as a “fate worse than death.” “Certainly it is   (Cruzan, 1990, p. 272).

26 PUBLIC POLICY & PRACTICE   OCT. - DEC. 2001
WENDLAND IN SOUTH CAROLINA                                       seeing that those wishes are respected can often be difficult.
Let us suppose for a moment that the Wendland case had           In cases where there is disagreement in the family—such as
arisen in South Carolina. Might the outcome have been            the Wendland case—the outcome can be devastating to the
different?                                                       family and, arguably, contrary to what the now-incapaci-
     Like California, South Carolina has a statutory provi-      tated loved one might have wanted. Two such cases with
sion for making medical treatment decisions when the             divergent outcomes—the Martin case in Michigan10 (where
patient permanently lacks decision-making capacity but           the court ruled against the wife in a case very similar to
has created neither a living will (Declaration of a Desire for   Wendland) and the Finn case in Virginia11 (where the wife
a Natural Death) nor a healthcare power of attorney. The         prevailed) have been decided. Still another—the case of
Adult Health Care Consent Act (Section 44-66-10 et seq.)         Terry Schiavo in Florida12—is in progress.
establishes a hierarchy for designation of the proper surro-        All of this could have been avoided by the use of a simple
gate decision-maker, or agent, for incompetent patients.         and inexpensive advance care planning document.
The hierarchy follows common social custom which values               The South Carolina living will law (Death With Dignity
marriage and families; spouse precedes parent or adult           Act) would allow an adult with decision-making capacity to
child, unless there is evidence of incompetence, intent to       create a document that would direct the course of medical
harm or lack of good faith. Under the provisions of the Act      care should they later lose the ability to make decisions.
(Section 44-66-10 et seq.) Rose Wendland would have had          One of the shortcomings of the law is that it is written to
authority to either “…consent or withhold consent to             apply to the withholding or withdrawal of life-sustaining
health care on behalf of the patient” (Section 44-66-30 (G)).    procedures only where the patient is either terminally ill or
“The decision must be based on the patient’s wishes to the       permanently unconscious and, arguably, would not apply
extent that the patient’s wishes can be determined. Where        where the patient was in a condition like Robert Wendland.
the patient’s wishes cannot be determined, the person            Therefore, if one were to use such a document and, in
must base the decision on the patient’s best interest”           addition, wish to avoid life-prolonging treatment under
(Section 44-66-30 (F)).                                          such circumstances, it would be necessary to insert such
     Since the statute is silent regarding the appropriate       instructions. Such wishes would likely be upheld as being
evidentiary standard, a reviewing court would have to            within the common law or constitutionally-protected rights
choose between the typical standard in civil cases—the           of competent patients to refuse all forms of unwanted
preponderance of the evidence—or imposing the higher             medical treatment and presumably would be clear and
standard of clear and convincing evidence. Should the            convincing evidence of their intent (Fulton & Metress,
South Carolina courts decide to follow the lead of the           1995, pp. 140-145).
California Supreme Court in requiring the higher standard,            Another way of ensuring that one’s wishes will be
the designated decision-maker would face the same di-            respected is to appoint a trusted relative or friend to
lemma as Rose Wendland. The Adult Health Care Consent            represent them under a power of attorney for health care.
Act also states that decision-making authority may not be        Unlike the limitations of the Death With Dignity Act, the
given to person whom the patient, before becoming unable         healthcare power of attorney authorizes the representative
to consent, didn’t want to be involved with such decisions       (attorney-in-fact) to unconditionally to “…consent or with-
(Section 44-66-30 (D)). Since there was evidence in the          hold consent…to health care” (Section 62-5-501). This is
Wendland case that Robert was estranged from his mother          known as a “springing” power in that it becomes effective
for years prior to his accident, a court might well hold that    upon the physical disability or mental incompetence of the
she lacked standing to dispute the either the testimony or       principal.13 One of three “statement of desires” options in
the authority of his wife.                                       the statutory form is: “I do not want my life to be prolonged
                                                                 nor do I want life-sustaining treatment to be provided or
THE LESSONS OF WENDLAND                                          continued if my Agent believes the burdens of treatment
Although it’s been a quarter of a century since the Quinlan      outweigh the expected benefits. I want my Agent to
case was decided by the New Jersey Supreme Court, and we         consider the relief of suffering, my personal beliefs, the
now have statutes in every state that would allow for the        expenses involved and the quality as well as the possible
creation of some form of advance directive, the number of        extension of my life in making decisions concerning life-
adults who have done so is regularly estimated at less than      sustaining treatment” (Section 62-5-501). If Robert
25 percent. Even in such cases as Quinlan and Cruzan,            Wendland had expressed his wishes through such a docu-
where there was agreement among all of the family about          ment it might be presumed that Rose, as his agent, would
what their daughter would have wanted, the process of            have been able to act accordingly.


                                                                                           PUBLIC POLICY & PRACTICE   OCT. - DEC. 2001 27
     The Adult Health Care Consent Act (Section 44-66-10            Hammes, B.J. and Rooney, B.L. (1998). Death and end-of-life
                                                                        planning in one midwestern community, Archives of Internal
et. seq.) would allow the statutorily-appointed representa-
                                                                        Medicine, 158, 383-390.
tive for a patient without an advance directive the same            Hammes, B. (1999). The lessons from respecting your choices: An
decision-making authority as an attorney-in-fact but, ironi-            interview with Bernard Hammes by A.L. Romer, Innovations in
cally, much less authority than would exist under the                   end-of life care, 1(1), [electronic version], available on-line at
statute for a patient with a “living will.” Like the health care        http://www.edc.org/lastacts.
                                                                    Institute of Public Affairs (2001). South Carolina state survey:
power of attorney law, the AHCCA surrogate is authorized                Summary findings for the South Carolina collaborative on end-
to “…consent or withhold consent to health care on behalf               of-life care. Columbia, SC: University of South Carolina.
of the patient” (Section 44-66-30(G)). The decision must,           Quinlan, In re (1976). 137 N.J. Super. 227, 348 A. 2d 801 (Ch.
however, be based “…on the patient’s wishes to the extent               Div), 1975), rev’d, 70
                                                                    N. J. 10, 355 A. 2d 647, cert. denied sub nom. Garger v. New Jersey,
that the patient’s wishes can be determined. Where the
                                                                        429 U. S. 922, 50 L. Ed. 2d 289, 97 S. Ct. 319 (1976 overruled
patient’s wishes cannot be determined, the person must                  in part, In re Conroy, 98 N. J. 321, 486 A. 2d 1209 (1985).
base the decision on the patient’s best interest” (Section 44-      Rasmussen v. Flemming, (1987). 154 Ariz. 207, 211, 741 P. 2d 674,
66-30(F)). The “living will” statute would only allow life-             678 (en banc).
sustaining treatment to be withheld or withdrawn if the             S.C. Code Ann. §§ 44-77-10-160 (Death With Dignity Act).
                                                                    S. C. Code Ann. §§ 62-5-501-505 (Health Care Power of Attorney).
patient were terminally ill or permanently unconscious.             S. C. Code Ann. §§ 44-66-10-80 (Adult Health Care Consent Act).
     Recently the Carolinas Center for Hospice and End-of-          Teel, K. (1975). The physician’s dilemma—A doctor’s view: What
Life Care (formerly Hospice of the Carolinas), with offices             the law should be. Baylor Law Review, 27(1), 6-9.
in both North and South Carolina, has launched an effort            Wendland v. Wendland, (2001). Decision of the California Su-
                                                                        preme Court filed August 8, 2001, [electronic version], avail-
to train advance care planning facilitators throughout the
                                                                        able on-line at
two states. In February of 2001, they sponsored a leader-           http://www.courtinfo.ca.gov/courts/supreme/summaries.
ship conference to certify 25 advance care planning trainers
from each state. The trainers, in turn, will be conducting          NOTES
programs for other healthcare professionals in hospitals,              1
                                                                          An advance directive is a document created to guide health
nursing homes, hospices, and senior citizen programs                care decisions in anticipation of the possible loss of decision-
throughout their respective states. The model for this              making ability. Such documents typically take the form of either
program is one that has been developed by Gunderson                 an instructional directive (a/k/a “living will”) or appointment of a
                                                                    surrogate decision-maker (a/k/a “durable power of attorney for
Healthcare Center in LaCrosse, Wisconsin, and has resulted          health care”).
in the widespread implementation of advance directives                  2
                                                                          A recent survey by the University of South Carolina’s Institute
there. Although representing a much smaller and more                of Public Affairs estimated that 17.9 percent of residents had
culturally homogeneous population than that of the Caro-            signed a living will, 7.5 percent had signed a health care power of
                                                                    attorney, and 7.6 had signed both. “A majority of South Carolin-
linas, the LaCrosse project resulted in a situation where
                                                                    ians—58.9%—said they had done nothing concerning their health
more than 80 percent of those who died had documenta-               care in a situation where they might not be able to make decisions
tion in their medical record indicating their treatment             for themselves…. The percentage who had signed a living will
preferences and values or their choice of a healthcare agent        increased from 7.2% among those age [sic] 18 to 29 to 45.2%
who could speak for them when they were no longer to                among those 65 or older, while the percentage who had signed a
                                                                    health care power of attorney ranged from 8.8% of those under 30
speak for themselves (Hammes and Rooney, 1998; Hammes,              years of age to 29.0% in the oldest age category. Similarly, a much
1999). Perhaps efforts such as this, along with increasing          higher percentage of those with a college degree than those with
public awareness of cases such as Wendland (and the                 less education had prepared a living will or signed a health care
others discussed herein), will succeed in putting more of           power of attorney” (Institute of Public Affairs, 2001).
                                                                        3
                                                                          The circumstances under which the accident occurred and
these decisions into the hands of the person or persons best
                                                                    the description of Robert’s condition are taken nearly verbatim
suited to speak for the Robert Wendland’s of the world.             from the Court’s decision (Wendland, 2001).
                                                                        4
                                                                          “For example, he could respond appropriately to the com-
REFERENCES                                                          mand ‘close your eyes and open them when I say the number 3.’
Cantor, N.L. (2001). Twenty-five years after Quinlan: A review of   … He could choose a requested color block out of four colored
   the jurisprudence of death and dying. Journal of Law, Medi-      blocks. He could set the right peg in a pegboard. Augmented
   cine & Ethics, 29(2), 182-196.                                   communication attempts, using a machine that produces the
Cruzan, by Cruzan v. Harmon, (1988). 760 S. W. 2d 408 (Mo.          words ‘yes’ and ‘no’ when corresponding buttons are touched,
   banc).                                                           were inconsistent. He remained unable to speak. Eye blinking
Cruzan v. Director, Missouri Department of Health (1990), 497       was successfully used as a communication mode for a while,
   U.S. 261.                                                        however no consistent method of communication was devel-
Fulton, G.B. and Metress, E.K. (1995). Perspectives on death and    oped” (Wendland, p. 4).
   dying. Boston, MA: Jones and Bartlett.


28 PUBLIC POLICY & PRACTICE   OCT. - DEC. 2001
    5
      Done for, in behalf of, or on the application of, one party only     ABOUT THE AUTHORS
(Black’s Law Dictionary, 4th ed. rev.).                                    Gere B. Fulton received a Ph. D. in health education from the
    6
      A conservator is like a guardian. “When any person having            University of Maryland in 1967 and a J. D. from the University
property shall be found to be incapable of managing his affairs, by        of Toledo’s College of Law in 1983. He has taught at Temple
the court of probate in the district in which he resides, * * * it shall   University, the University of New Jersey, Dalhousie University,
appoint some person to be his conservator, who upon giving a               and the University of Toledo. He was granted the title of
probate bond, shall have the charge of the person and estate of            Emeritus Professor from the University of Toledo in 1999. He
such incapable person” (Black’s Law Dictionary, 4th ed. rev.).             is currently a professor in the University of South Carolina’s
    7
      The Quinlan decision was largely responsible for the develop-        School of Medicine, an adjunct professor in the School of
ment of hospital ethics committees. Although there were few in             Public Health, and a member of the core faculty in the Center
existence at that time, the New Jersey Supreme Court seemed to             for Bioethics and Medical Humanities of the Institute for Public
be influenced by a short article in the Baylor Law Review which            Service and Policy Research.
suggested that hospitals might use ethics committees to protect
patients (and themselves) much as used institutional review                Donald E. Saunders, Jr., M.D., graduated from Duke University
boards (IRB) to ensure protection of research subjects (see Teel,          School of Medicine in 1955 and did post-graduate training at
1975).                                                                     Duke, Johns Hopkins and the National Heart Hospital in
    8
      The court seemed to envision the ethics committee deciding           London, UK. He is board certified in internal medicine and
whether or not there was a likelihood of Karen ever returning to           cardiology. He is Distinguished Professor of Medicine Emeritus
a “cognitive, sapient state,” a judgment best left to a prognosis          at the University of South Carolina School of Medicine and was
committee comprised of specialists in the neurosciences rather             formerly Chief of Cardiology and Senior Associate Dean. He
than the multi-disciplinary membership that comprises the typical          co-founded the USC Center for Bioethics and Medical Humani-
ethics committee.                                                          ties of the Institute for Public Service and Policy Research. Dr.
    9
      In civil matters the standard of proof is typically the prepon-      Saunders can be reached at
derance of the evidence, i. e., “Is it more likely than not that the       dsaunder@richmed.medpark.sc.edu.
statement or situation is accurately portrayed?” The clear and
convincing standard is higher than that, but lower than the
beyond a reasonable doubt standard that is used in criminal trials.
    10
       The facts in the Martin case were nearly identical to those in
Wendland. Michael Martin was severely impaired, but not perma-
nently unconscious, as the result of a car-train accident. His wife’s
efforts to discontinue tube-feeding were opposed by his mother
and sister. Like Wendland, the Michigan Supreme Court—finding
an absence of clear and convincing evidence of Michael’s wishes—
ruled against discontinuation.
    11
       The Finn case pitted Hugh Finn’s wife and sister against his
mother and siblings. Unlike Michael Martin and Robert Wendland,
Hugh Finn was diagnosed as being permanently unconscious and
the court ruled that his wife could authorize discontinuation of
tube feeding.
    12
       The Schiavo case, another instance of families in dissent, is
currently in progress in Florida.
    13
       Mental incompetence is determined according to the stan-
dards and procedures for inability to consent under Section 44-
66-20(6) of the Adult Health Care Consent Act. The patient must
be “…unable to appreciate the nature and implications of [his/
her] condition and proposed health care, to make a reasoned
decision concerning the proposed health care, or to communicate
that decision in an unambiguous manner…. A patient’s inability to
consent must be certified by two licensed physicians, each of
whom has examined the patient.”




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