CALIFORNIA APPEALS COURT SANCTIONS WITHDRAWAL OF FOOD AND FLUIDS FROM CONSCIOUS, DISABLED PEOPLE

By Thomas Marzen, J.D.

In an unprecedented decision, a California appeals court has held that life-sustaining tube feeding and hydration may be withdrawn from a disabled person at the direction of the person's guardian, even if the patient is not unconscious, not terminally ill, and never said he or she would want food and fluids removed.

This ominous decision in Wendlund v. Wendlund is in conflict with the decisions handed down by the state Supreme Courts of Michigan and Wisconsin, which have previously held that tube feeding and hydration can be withheld or withdrawn from a conscious person who is presently unable to make treatment decisions only if there is "clear and convincing" evidence that the person had refused it.

By contrast, Wendlund v. Wendlund held that if the patient has not made a definite prior statement about what they would want done, the patient's food and fluids can be removed if the patient's legal guardian says that withdrawal would be in the patient's "best interests" and if supported by a "valid medical judgment." As a practical matter, the Wendlund decision grants broad authority to a court-appointed guardian to order the foregoing of even minimally burdensome forms of life-sustaining treatment or care from conscious, though mentally compromised, non-terminally ill disabled persons.

The conservator must only show that he or she is acting in good faith, with medical advice, and in the "best interests" of the affected person.

Background

Robert Wendlund, 42, was left severely brain damaged and cognitively impaired by a 1993 automobile accident. He is conscious and sometimes able to respond to simple requests, but is totally dependent on others for his care.

Mr. Wendland can interact, but he is unable to communicate consistently. He receives life-sustaining food and fluids through a tube.

Wendlund's wife was appointed his conservator after a trial court determined that he lacked the present capacity to make his own treatment decisions. The wife subsequently requested court authority to withdraw Wendlund's feeding tube, alleging that this is what Wendlund would have chosen to do if competent. Wendlund's guardian ad litem concurred with his wife's decision, but his mother and sister vigorously objected.

Although the trial court strongly sympathized with the wife's decision, it ruled that life-sustaining tube feeding and hydration could not be foregone from non-terminally ill persons who are not permanently comatose or in a "persistent vegetative state" unless there is "clear and convincing" evidence that this was directed by the affected person. Although there was some evidence that prior to his car accident Wendlund may have indicated he would not want to live under his present circumstances, the trial court found that there was not sufficiently clear or convincing proof that he would have refused tube feeding and hydration. The court thus denied Wendlund's wife the authority to order withdrawal, and his wife appealed.

The core of the California Court of Appeals for the Third Appellate District's decision was that in requiring clear and convincing evidence of patient intent to refuse tube feeding or hydration, the trial court applied the wrong standard.

The California conservator [guardian] statute states the following: an appointed "conservator has the exclusive authority to give consent for such medical treatment to be performed on the conservatee [ward] as the conservator in good faith based on medical advice determines to be necessary and the conservator may require the conservatee to receive such medical treatment, whether or not the conservatee objects."

Thus, Wendlund's wife/conservator could order the withdrawal of his feeding tube if her decision is held to be in good faith, does not violate medical advice, and is in the "best interest" of Wendlund, taking into account any of his prior expressed wishes.

Because this is a life-or-death decision, the appellate court found that a conservator has the burden of proof to demonstrate clearly and convincingly to the trial court that this standard has been met. However, of crucial importance is that the conservator is not required to prove that his or her ward, while competent, had expressed a desire to die or to refuse the treatment under consideration found in the present circumstances.

The appellate court held that the California conservator statute neither contains nor implies such a requirement of expressed patient intent.

Moreover, trial courts will not be allowed to make an independent evaluation of the conservatee's "best interests." "[T]he court is merely to satisfy itself that the conservator has considered the conservatee's best interest," the appeals court wrote.

Because no evidence opposing the withdrawal of Wendlund's tube feeding had been offered in the trial court, the appellate court sent the case back to the lower court in order to permit the opportunity to do so.

Wendlund's mother and sister have said they intend to appeal the appellate court decision to the California Supreme Court. They will have a difficult, perhaps nearly impossible task in demonstrating that their daughter-in-law has violated any of these standards - - especially in view of the growing acceptance in medical circles of foregoing tube feeding and similar forms of treatment and care from persons with severe mental disabilities arising from head injuries, strokes, Alzheimer's disease, and advanced dementia.

Because the result in the Wendlund decision is closely tied to California's somewhat unique statutory scheme, it may not have nationwide consequences in some respects. Notably, however, the Wendlund court rejected the claim that a decision allowing a conservator to refuse life-sustaining treatment for conscious, mentally compromised persons violates any constitutional "right to life."

The court held that "[A] guardian's withdrawal of life-sustaining treatment does not constitute a deprivation of life; rather it allows the disease to take its natural course."

In other words, from the appeals court's perspective, a person like Robert Wendlund would not die as the result of a conservator's decision to deprive him of tube feeding, but from the injury that caused his inability to swallow. Because the conservator's decision supposedly implements Wendlund's "right" to refuse the tube feeding, it does not deprive him of a right to choose life.

In addition, any constitutional requirements of due process for the person are satisfied "through statutory procedures for appointment of a guardian and determination of incompetency," the appeals court said.

As a result of the decision, broadly speaking, once a conservator has been appointed - - at least in California - - he or she is likely to have a virtually free hand unless a family member of the affected person is willing to contest the matter in court.

According to Burke Balch, director of medical ethics for the National Right to Life Committee, the Wendlund decision underscores the need for people to take an active part in protecting their own lives and those of their family members.

"The courts and the medical profession increasingly sanction withholding and withdrawing even the most ordinary forms of treatment and care from people based on their supposed lack of 'quality of life,'" he said.

According to Balch, "Your life and the lives of your family members will be in jeopardy if you do not make your decision to request treatment clear in a written document such as National Right to Life's 'Will to Live.' "

Thomas Marzen, J.D., is the general counsel, National Legal Center for the Medically Dependent & Disabled.