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
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
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).
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).
“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
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
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
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
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.
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 firstname.lastname@example.org.
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.
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.
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
The Schiavo case, another instance of families in dissent, is
currently in progress in Florida.
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.”
PUBLIC POLICY & PRACTICE OCT. - DEC. 2001 29