In Re Rosebush , 195 Mich. App. 675 ( 1992 )

MacKenzie, P.J.

This is an appeal from an order allowing petitioners, the parents of Joelle Rosebush, to authorize the removal of life-support systems for their minor daughter. Although the issues raised in this appeal were rendered technically moot upon Joelle’s death, appellate review is nevertheless appropriate because the issues involve questions of public significance that may recur and yet evade review. Highland Recreation Defense Foundation v Natural Resources Comm, 180 Mich App 324, 327; 446 NW2d 895 (1989). See also In re LHR, 253 Ga 439; 321 SE2d 716 (1984); In re Lawrance, 579 NE2d 32, 37 (Ind, 1991); In re Guardianship of Hamlin, 102 Wash 2d 810; 689 P2d 1372 (1984).

i

Joelle Rosebush was born on May 20, 1976. On January 12, 1987, she was involved in a traffic accident. Her spinal cord was severed at the C-l level, just below the skull, and she went into cardiac arrest. The spinal cord injury left Joelle completely and irreversibly paralyzed from the neck down and unable to breathe without a respirator. The lack of oxygen during cardiac arrest destroyed most, if not all, of Joelle’s cerebral functions, and left her in a persistent vegetative state. It was uncontroverted that Joelle would never regain consciousness and would never be able to breathe on her own. Joelle’s brain stem was not destroyed, however, and her injuries did not leave her "brain dead” as defined under Michigan law. See MCL 333.1021 et seq.; MSA 14.15(1021) et seq.

Joelle was hospitalized at William Beaumont Hospital of Royal Oak until June, 1987. In spite of the prognosis of no recovery and Joelle’s steadily deteriorating condition, petitioners, hopeful of future improvement in Joelle’s condition, rejected the option of discontinuing life-support at that time. Joelle was then moved to the Neurorehabilitation Center at the Georgian Bloomfield Nursing Home. By March 1988, it became clear to petitioners that Joelle’s condition had not improved and that she would never progress from her vegetative condition. Petitioners then decided to authorize the removal of life-support systems. This decision was made after consultation with Joelle’s treating physicians, the staff of the Neurorehabilitation Center, the family’s Catholic priest, and the family’s attorney.

In March 1988, Joelle’s medical case manager sought the assistance of doctors at Children’s Hospital of Michigan—Detroit in effectuating petitioners’ decision to discontinue life-support. The bioethics committee at Children’s Hospital subsequently authorized Joelle’s transfer to that facility for further evaluation. The transfer was blocked, however, after staff members at the Neurorehabilitation Center contacted respondent, who obtained an ex parte temporary restraining order, and later a preliminary injunction, prohibiting Joelle’s transfer or the removal of life-support systems.

Following seven days of trial, the court dissolved the preliminary injunction and authorized petitioners "to make any and all decisions regarding the medical treatment received by their daughter, including but not limited to, the authority to order the removal of the ventilator that sustains Joelle’s respiratory functions.” Joelle died on August 13, 1988, shortly after her respirator was deactivated.

ii

A

Courts variously have found a right to forego life-sustaining medical treatment on the basis of three sources: (1) the common-law right to freedom from unwanted interference with bodily integrity, (2) the constitutional right to privacy or liberty, or (3) statute. See generally, Meisel, The Right to Die (New York: Wiley Law Publications, 1989), pp 49-54. We hold that, in Michigan, there is a right to withhold or withdraw life-sustaining medical treatment as an aspect of the common-law doctrine of informed consent.¹ The trial court did not err in determining that petitioners had the legal authority to order the removal of life-support systems.

B

Michigan recognizes and adheres to the common-law right to be free from nonconsensual physical invasions and the corollary doctrine of informed consent. Accordingly, if a physician treats or operates on a patient without consent, the physician has committed a battery and may be required to respond in damages. Zoski v Gaines, 271 Mich 1, 9-10; 260 NW 99 (1935); Young v Oakland Gen Hosp, 175 Mich App 132, 139; 437 NW2d 321 (1989); Banks v Wittenberg, 82 Mich App 274, 279-280; 266 NW2d 788 (1978).

The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, the right to refuse medical treatment and procedures. Werth v Taylor, 190 Mich App 141, 145; 475 NW2d 426 (1991). Thus, a competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment. Id., citing Cruzan v Director, Missouri Health Dep't, 497 US —; 110 S Ct 2841; 111 L Ed 2d 224 (1990), and In re Quinlan, 70 NJ 10; 355 A2d 647 (1976).²

The right to refuse lifesaving medical treatment is not lost because of the incompetence or the youth of the patient. In re LHR, supra, p 446.³ However, because minors and other incompetent patients lack the legal capacity to make decisions concerning their medical treatment, someone acting as a surrogate must exercise the right to refuse treatment on their behalf.⁴ See generally, Meisel, supra, chs 8 and 13; Guidelines for State Court Decision Making in Authorizing or Withholding Life-Sustaining Medical Treatment (Williamsburg, Va: National Center for State Courts, 1991); Younger, ed, Hospital Law Manual, Attorney’s Volume, Volume II, Dying, Death, and Dead Bodies, pp 28-35 (Rockville, Md: Aspen Publishers, Inc, 1992); anno: Judicial power to order discontinuance of life-sustaining treatment, 48 ALR4th 67.

It is well established that parents speak for their minor children in matters of medical treatment. See Parham v JR, 442 US 584; 99 S Ct 2493; 61 L Ed 2d 101 (1979); Zoski, supra; Bakker v Welsh, 144 Mich 632; 108 NW 94 (1906). Because medical treatment includes the decision to decline lifesaving intervention, Werth, supra, it follows that parents are empowered to make decisions regarding withdrawal or withholding of lifesaving or life-prolonging measures on behalf of their children.⁵

c

Having determined that minors have the same. right to decline life-sustaining treatment as their competent adult counterparts, and that parents may act as surrogate decision makers to exercise that right, we next consider what restrictions, if any, should be placed on the parents’ decision-making authority and what role, if any, the courts should play in the decision-making process. We hold that the decision-making process should generally occur in the clinical setting without resort to the courts, but that courts should be available to assist in decision making when an impasse is reached. We further hold that, in making decisions for minors or other incompetent, patients, surrogate decision makers should make the best approximation of the patient’s preference on the basis of available evidence; if such preference was never expressed or is otherwise unknown, the surrogate should make a decision based on the best interests of the patient._

D

Our research has found two cases involving the discontinuation of life-sustaining treatment for minor children who were in a persistent vegetative state.⁶ In In re Guardianship of Barry, 445 So 2d 365 (Fla App, 1984), the parents petitioned to terminate life-support systems for their ten-month-old son, who was permanently comatose. The circuit court granted the petition, and the Florida Court of Appeals affirmed. In so doing, the court stated:

Where, as here, the parents’ informed decision is backed by uncontroverted medical evidence that their young child is terminally ill and that his condition is incurable and irreversible, their decision, we think, overrides any interest of the state in prolonging their child’s life through extraordinary measures. We can conceive of no state interest great enough to compel the parents to continue to submit their child to a life support system in this instance. To do so would merely prolong the death of a child terminally ill, wholly lacking in cognitive brain functioning, completely unaware of his surroundings, and with no hope of development of any awareness. The means now being employed are measures which even the physicians testified they would not now initiate given their present knowledge of the situation. It is, we think, the right and the obligation of the parents in such an instance to exercise their responsibility and prerogative, as did Mr. and Mrs. Barry, of making an informed determination as to whether these extraordinary measures should be continued. See In re Quinlan. [445 So 2d 371.]

The Barry court rejected the state’s request that judicial review be required before life-support methods may be withheld from a minor who is not brain dead:

[W]here, as here, the question concerns a young child, we do not think the parents must always qualify as legal guardians and seek judicial sanctions to discontinue these extraordinary measures. A decision by parents supported by competent medical advice . . . should ordinarily be sufficient without court approval. Of course, diagnosis should always be confirmed by at least two physicians. We must remember that the conscience of society in these matters is not something relegated to the exclusive jurisdiction of the court.

Although judicial intervention need not be solicited as a matter of course, still the courts must always be open to hear these matters on request of the family, guardian, affected medical personnel, or the state. In cases where doubt exists, or there is a lack of concurrence among family, physicians, and the hospital, or if an affected party simply desires a judicial order, then the court must be available to consider the matter. Medical personnel and hospitals may well consider the suggestion made by Dr. Solomon in his testimony that an advisory committee should be available to assist families and physicians in these matters. [445 So 2d 372.]

In In re LHR, supra, the parents of an infant in an irreversible chronic vegetative state sought to remove life-support systems from the child, and the hospital treating the child sought a declaratory judgment regarding whether life-support activity could be terminated. The Supreme Court of Georgia concluded that it could, stating:

We conclude that the right to refuse treatment or indeed to terminate treatment may be exercised by the parents or legal guardian of the infant after diagnosis that the infant is terminally ill with no hope of recovery and that the infant exists in a chronic vegetative state with no reasonable possibility of attaining cognitive function. The above diagnosis and prognosis must be made by the attending physician. Two physicians with no interest in the outcome of the case must concur in the diagnosis and prognosis. Although prior judicial approval is not required, the courts remain available in the event of disagreement between the parties, any case of suspected abuse,' or other appropriate instances.

In the narrow case before us no hospital ethics committee need be consulted. This in no way forecloses use of such a committee if this is the choice of the hospital, physician or family. Once the diagnosis is made that the infant is terminally ill with no hope of recovery and in a chronic vegetative state with no possibility of attaining cognitive function, the state has no compelling interest in maintaining life. The decision to forego or terminate life-support measures is, at this point, simply a decision that the dying process will not be artificially extended. While the state has an interest in the prolongation of life, the state has no interest in the prolongation of dying, and although there is a moral and ethical decision to be made to end the process, that decision can be made only by the surrogate of the infant. Since the parents are the natural guardians of the infant, where there are parénts no legal guardian and no guardian ad litem need be appointed.

We conclude that the decision whether to end the dying process is a personal decision for family members or those who bear a legal responsibility for the patient. We do not consider this conclusion an abdication of responsibility of the judiciary. While the courts are always available to protect the rights of the individual, the condition of this individual is such that the decision is one to be made by the family and the medical community. As previously noted, the courts remain open to assist if there is disagreement between decision makers or question of abuse. [253 Ga 446-447.]

See also Meisel, supra, chs 6 and 8; Guidelines for State Court Decision Making, supra, pp 101-122. But see Superintendent of Belchertown State School v Saikewicz, 373 Mass 728; 370 NE2d 417 (1977).

We agree with the principles set forth in Barry and In re LHR. After the trial court’s decision in this case, our Legislature enacted MCL 700.496; MSA 27.5496, which allows competent adults to appoint a patient advocate to make medical-treatment decisions, including the withdrawal of life-sustaining treatment, on their behalf. While the statute provides for judicial intervention under certain limited circumstances, we believe that this legislation demonstrates that the overriding public policy of this state is to respect the roles played by the patient, family, physicians, and spiritual advisors in the making of decisions regarding medical treatment, as well as the policy that courts need not delve into that decision-making process unless necessary to protect the patient’s interests. Although the legislation applies only to competent adults, we are satisfied that the public policy of judicial nonintervention also extends to decisions concerning the medical treatment of incompetent persons and minors. In re LHR, supra. We therefore hold that, in general, judicial involvement in the decision to withhold or withdraw life-sustaining treatment on behalf of a minor or other incompetent patient need occur only when the parties directly concerned disagree about treatment, or other appropriate reasons are established for the court’s involvement. See Guidelines for State Court Decision Making, supra, pp 101-122.

E

While the decision of a competent adult patient regarding the cessation of life-sustaining measures will generally control that patient’s care, a different standard must necessarily guide the surrogate of an incompetent patient, including the parent of an immature minor child, where the incompetent or the minor has never expressed his wishes. Two basic standards have evolved for surrogates to decide whether to withdraw or withhold consent to life-sustaining treatment: the "substituted judgment” standard and the "best interests” standard.⁷ See generally, Guidelines for State Court Decision Making, supra, pp 72-78; Meisel, supra, ch 9.

Under the substituted judgment standard, the surrogate exercising an incompetent patient’s rights must make the decision whether to forego life-sustaining treatment on the basis of what the patient would have decided had the patient been able to do so. Meisel, supra, p 278. The parameters of the standard were concisely set forth in In re Conroy, 98 NJ 321, 365; 486 A2d 1209 (1985):

Under the limited-objective test, life-sustaining treatment may be withheld or withdrawn from a patient in Claire Conroy’s situation when there is some trustworthy evidence that the patient would have refused the treatment, and the decision-maker is satisfied that it is clear that the burdens outweigh the benefits of that life for him. By this we mean that the patient is suffering, and will continue to suffer throughout the expected duration of his life, unavoidable pain, and that the net burdens of his prolonged life (the pain and suffering of his life with the treatment less the amount and duration of pain that the patient would likely experience if the treatment were withdrawn) markedly outweigh any physical pleasure, emotional enjoyment, or intellectual satisfaction that the patient may still be able to derive from life. This limited-objective standard permits the termination of treatment for a patient who had not unequivocally expressed his desires before becoming incompetent, when it is clear that the treatment in question would merely prolong the patient’s suffering.

Under the proper circumstances—where a patient was formerly competent or is a minor of mature judgment—the substituted judgment standard is an appropriate test. See Guidelines for State Court Decision Making, supra, pp 72-83. However, as applied to immature minors and other never-competent patients, the substituted judgment standard is inappropriate because it cannot be ascertained what choice the patient would have made if competent. Meisel, supra, p 275. See also In re Guardianship of Barry, supra, pp 370-371; In re LHR, supra, p 444; Rasmussen v Fleming, 154 Ariz 207; 741 P2d 674 (1987). We therefore conclude that, where the patient has never been competent, the decision-making test that better guides the surrogate is the best interests standard.

The best interests standard was summarized in In re Guardianship of Grant, supra, as follows:

There will be many situations where it cannot be ascertained what choice the patient would make if competent. In such cases, the guardian must make a good-faith determination of whether the withholding of life sustaining treatment would serve the incompetent patient’s best interests. The following is a nonexclusive list of the factors which should be considered in making this determination:

[E]vidence about the patient’s present level of physical, sensory, emotional, and cognitive functioning; the degree of physical pain resulting from the medical condition, treatment, and termination of the treatment, respectively; the degree of humiliation, dependence, and loss of dignity probably resulting from the condition and treatment; the life expectancy and prognosis for recovery with and without treatment; the various treatment options; and the risks, side effects, and benefits of each of those options.

Conroy, 98 NJ at 397, 486 A2d 1209 (Handler, J. concurring in part and dissenting in part). [109 Wash 2d 567-568.]

The trial court in this case properly recognized the best interests standard as an appropriate standard to use in deciding whether to remove life-support systems for Joelle.

hi

Respondent has suggested that the determination of death act, MCL 333.1021 et seq.; MSA 14.15(1021) et seq., precludes the removal of a patient’s life-support apparatus until after the patient has been determined to be brain dead. We agree with the trial court’s conclusion, that "the statute only addresses one question: is the patient dead, so that life-support may be disconnected without fear of liability?”

The determination of death act provides:

A person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice in the community, there is the irreversible cessation of spontaneous respiratory and circulatory functions. If artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if in the announced opinion of a physician, based on ordinary standards of medical practice in the community, there is the irreversible cessation of spontaneous brain functions. Death will have occurred at the time when the relevant functions ceased. [MCL 333.1021; MSA 14.15(1021).]

Death is to be pronounced before artificial means of supporting respiratory and circulatory functions are terminated. [MCL 333.1022; MSA 14.15(1022).]

The means of determining death in section 1 shall be used for all purposes in this state, including the trials of civil and criminal cases. [MCL ,333.1023; MSA 14.15(1023).]

Courts may look to the legislative history of an act, as well as the time during which the act was passed, to ascertain the reason for the act and the meaning of its provisions. People v Hall, 391 Mich 175, 191; 215 NW2d 166 (1974). In the case of the determination of death act, the legislation was a response to the problem that, with the advances in life-sustaining medical technology, the traditional indicia of death—lack of pulse or breathing—were no longer meaningful when artificial life-support means were used. "[T]he concern of the drafters, as evinced by the legislative history cited to the court, was to provide a clear benchmark, a bright line test to be used by physicians for determining the time of death of persons who are maintained on life-support apparatus.” Crobons v Wisconsin National Life Ins Co, 594 F Supp 379, 384 (ED Mich, 1984), aff'd 790 F2d 475 (CA 6, 1986).

We hold that the determination of death act was intended only to determine when a person receiving life-sustaining treatment has died. It was not intended to prevent the removal of life-support apparatus until a patient has been declared brain dead.

iv

Respondent has also suggested that the termination of life-support treatment for Joelle should subject petitioners and Joelle’s doctors to criminal liability for homicide.

No court has reached the conclusion that the withholding or withdrawal of life-sustaining measures should be a ground for imposition of criminal liability. Meisel, supra, pp 57-58; anno: Homicide: Physician’s withdrawal of life supports from comatose patient, 47 ALR4th 18. See also Uniform Rights of the Terminally 111 Act, § 10(a), 9B ULA 609, 620. The trial court in this case declined to impose criminal liability, and we agree.

The corpus delicti of a felonious homicide consists of a death and the existence of criminal agency as its cause. People v Mondich, 234 Mich 590, 593-594; 208 NW 675 (1926). The decision to withdraw or withhold consent to life-sustaining treatment and the implementation of such a decision does not amount to criminal agency because the decision and its implementation are authorized under the common law. Moreover, the implementation of a decision to terminate life-support treatment is not the cause of the patient’s subsequent death. Instead, the discontinuance of life-support measures merely allows the patient’s injury or illness to take its natural and inevitable course. See In re Guardianship of Grant, supra, p 564. As stated in In re Welfare of Colyer, 99 Wash 2d 114, 123; 660 P2d 738 (1983), "[a] death which occurs after the removal of life sustaining systems is from natural causes, neither set in motion nor intended by the patient” or the patient’s surrogate. The trial court did not err in refusing to impose criminal liability for the removal of Joelle’s life-support systems.

Affirmed.

Jansen, J., concurred.

1 This disposition makes it unnecessary to decide the validity of the constitutional or statutory bases in Michigan.

2 It is generally recognized, however, that the right to refuse life-sustaining treatment may, in rare cases, be outweighed by countervailing state interests. Four such state interests have been identified: (1) the preservation of life, (2) the protection of innocent third parties, (3) the prevention of suicide, and (4) the maintenance of the ethical integrity of the medical profession. See In re Guardianship of Grant, 109 Wash 2d 545; 747 P2d 445 (1987), modified 757 P2d 534 (1988); Meisel, supra, pp 96-100; anno: Judicial power to order discontinuance of life-sustaining treatment, 48 ALR4th 67. Nevertheless, when dealing with incompetent patients for whom there is no medical probability of substantial recovery, as in this case, courts have found that countervailing state interests do not preclude recognition of the right to have life-sustaining treatment discontinued. "Therefore, the state’s interest in the preservation of life has been held to be insufficient to outweigh the individual right where the life which would be preserved would be one in a merely vegetative state or one enduring only a prolonged process of dying . . . and the state interest in the prevention of suicide has been seen as inapplicable or insignificant where there was" no intent to die and where death would be the result of natural processes. . . . Similarly, the state interest in the protection of third parties has been held to be inapplicable or insignificant where no third parties were dependent upon the patient in question or where affected third parties themselves supported termination of treatment. . . . Finally, the state’s interest in maintaining the ethical integrity of the medical profession has been held not to preclude recognition of an individual’s right to discontinuance of life-sustaining treatment where prevailing standards of medical ethics do not condemn the contemplated course of action.” 48 ALR4th, p 73.

3 See also In re Guardianship of Grant, supra; Gray v Romeo, 697 F Supp 580 (D RI, 1988); Rasmussen v Fleming, 154 Ariz 207; 741 P2d 674 (1987); Foody v Manchester Memorial Hosp, 40 Conn Super 127; 482 A2d 713 (1984); In re AC, 573 A2d 1235, 1247 (DC App, 1990); In re Guardianship of Browning, 568 So 2d 4 (Fla, 1990); John F Kennedy Memorial Hosp v Bludworth, 452 So 2d 921 (Fla, 1984); Corbett v D’Alessandro, 487 So 2d 368 (Fla App, 1986), review den 492 So 2d 1331 (Fla, 1986); Brophy v New England Sinai Hosp, Inc, 398 Mass 417; 497 NE2d 626 (1986); In re Spring, 380 Mass 629; 405 NE2d 115 (1980); In re Jobes, 108 NJ 394; 529 A2d 434 (1987); In re Peter, 108 NJ 365; 529 A2d 419 (1987); In re Visbeck, 210 NJ Super 527; 510 A2d 125 (Ch Div, 1986); In re Colyer, 99 Wash 2d 114; 660 P2d 738 (1983); Barber v Superior Court, 147 Cal App 3d 1006; 195 Cal Rptr 484 (1983); Severns v Wilmington Medical Center, Inc, 421 A2d 1334 (Del, 1980); In re Guardianship of Barry, 445 So 2d 365 (Fla App, 1984); In re PVW, 424 So 2d 1015 (La, 1982); Custody of a Minor, 385 Mass 697; 434 NE2d 601 (1982); In re Hier, 18 Mass App 200; 464 NE2d 959 (1984), review den 392 Mass 1102; 465 NE2d 261 (1984); In re Conservatorship of Torres, 357 NW2d 332 (Minn, 1984); In re Clark, 210 NJ Super 548; 510 A2d 136 (Ch Div, 1986); Leach v Akron Gen Medical Center, 68 Ohio Misc 1; 426 NE2d 809 (1980); In re Guardianship of Ingram, 102 Wash 2d 827; 689 P2d 1363 (1984); In re Guardianship of Hamlin, supra; In re Lawrance, supra.

4 The advance directive of a mature minor, stating the desire that life-sustaining treatment be refused, should be taken into consideration or enforced when deciding whether to terminate the minor’s life-support treatment or refuse medical treatment. See In re Swan, 569 A2d 1202 (Me, 1990); In re EG, 133 Ill 2d 98; 139 Ill Dec 810; 549 NE2d 322 (1989). Cf. Bakker v Welsh, 144 Mich 632; 108 NW 94 (1906).

5 See generally, Meisel, supra, ch 13. Of course, where the parents of a minor child for some reason are themselves incompetent to act as surrogate decision makers, and other family members are unavailable or unwilling to act as surrogates, a guardian should be appointed to exercise the minor’s rights on behalf of the minor. See Meisel, supra, p 417.

6 A third case, In re PVW, 424 So 2d 1015 (La, 1982), also concerned the removal of a permanently comatose minor from life-support systems. That case is inapposite to this case, however, because it primarily involved the construction of a Louisiana statute allowing the discontinuation of life-support treatment under certain circumstances.

7 Respondent suggests a third standard, based on the presence of clear and convincing evidence that the incompetent patient made a firm and informed decision, while competent, to forego life-sustaining treatment under similar circumstances. We summarily reject this standard, because its adoption would always preclude the termination of life-support efforts for minors and other persons who have never been legally competent, in direct contradiction of the right to refuse medical treatment. Compare In re Guardianship of Hamlin, supra.