All instances of the word
"ARTIFICIAL" appear in RED
Patricia E. Brophy v. New England Sinai Hospital, Inc.
No. N-4152
Supreme Judicial Court of Massachusetts
398 Mass. 417; 497 N.E.2d
626; 1986 Mass.
May 7, 1986, Argued
September 11, 1986,
Decided
PRIOR HISTORY: [***1]
Norfolk.
Civil action commenced in the Norfolk Division of the
Probate and Family Court Department on February 6, 1985.
The case was
heard by David H. Kopelman, J.
The Supreme Judicial Court on
its own initiative transferred the case from the Appeals Court.
DISPOSITION: So ordered.
HEADNOTES: Incompetent Person, Consent to
medical treatment, Right to refuse medical treatment. Probate Court,
Incompetent person, Withholding medical treatment. Medicine,
Withholding medical treatment. Privacy.
SYLLABUS: With respect to a hospital patient who, as
the result of irreversible brain damage, had been in a vegetative state for more
than three years and who, when in good health, had expressed his desire not to
be maintained in a persistent vegetative state, this court, applying the
substituted judgment doctrine articulated in Superintendent of
Belchertown State School v. Saikewicz, 373 Mass. 728 (1977),
concluded that the patient could lawfully be removed by his guardian from a
hospital which had refused to cease providing him with nutrition and hydration
by artificial means and be placed in a different facility, or in his home, where
his expressed wishes could be effectuated. [***2] [419-423] Nolan,
J., dissenting. Lynch, J., dissenting in part. O'Connor, J., concurring in part
and dissenting in part.
Discussion of the right of a patient to
refuse medical treatment, as applicable to one who is in a persistent vegetative
state as the result of irreversible brain damage; who is being sustained by
nutrition and hydration supplied to him through a surgically-inserted
gastrostomy tube; and who is unlikely ever to regain cognitive function, the
ability to communicate, or the capability of interacting purposefully with his
environment, but who is neither terminally ill nor facing imminent death from
any other medical cause. [429-433]
In the case of an incompetent
hospital patient who was diagnosed as being in a persistent vegetative state,
but who was neither terminally ill nor facing imminent death from any medical
cause, the Commonwealth's interest in preserving life did not override the
patient's substituted judgment decision which would be to discontinue receiving
nutrition and hydration through a surgically-inserted gastrostomy tube.
[433-438] Nolan, J., Lynch, J., and O'Connor, J., dissenting.
In
the case of an incompetent hospital patient [***3] who was diagnosed
as in a persistent vegetative state, but who was neither terminally ill nor
facing imminent death from any medical cause, the Commonwealth's interest in
preventing suicide was inapplicable to override the patient's substituted
judgment decision to discontinue receiving nutrition and hydration through a
surgically-inserted gastrostomy tube, inasmuch as the patient's resulting death
would be from the natural medical causes preventing him from being sustained
without the use of the tube, and not from a cause set in motion or intended by
the patient or on his behalf. [438-439] Nolan, J., Lynch, J., and O'Connor, J.,
dissenting.
Where neither a hospital nor any medical professional
was to be required to participate in giving effect to the substituted judgment
decision of a certain patient, who was in a persistent vegetative state, to
discontinue receiving nutrition and hydration through a surgically-inserted
gastrostomy tube, a Probate Court judgment which would allow the patient's
guardian to remove him to a different facility, or to his home, where his wishes
could be effectuated, would present no violation of the ethical integrity of the
hospital or its staff. [***4] [439-441] Nolan, J., and Lynch, J.,
dissenting. O'Connor, J., concurring.
COUNSEL:
Frank E. Reardon (Nancy R. Rice & Judith A. Johnson with
him) for the plaintiff.
Elaine M. Moriarty for the defendant.
Peter W. Gubellini for the ward.
John G. Dugan
for the guardian ad litem.
The following submitted briefs for amici
curiae:
Anne W. Hogeland & John Traficonte for
American Academy of Neurology.
Carol J. Weil of the District of
Columbia for Massachusetts Chapter of American College of Physicians.
Dennis J. Horan, Edward R. Grant, Clarke D. Forsythe &
Ann-Louise Lohr of Illinois & J. Michael Roberts for certain
fellows and members of Massachusetts Medical Society & others.
Elena N. Cohen & Fenella Rouse of New York for Society for
the Right to Die, Inc.
Charles H. Baron & Marjorie Heins
for Civil Liberties Union of Massachusetts.
William Crane &
Jonathan Brant for Developmental Disabilities Law Center, Inc.
George J. Annas & Leonard H. Glantz for Concern for Dying.
JUDGES: Hennessey, C.J., Wilkins, Liacos, Abrams,
Nolan, Lynch, & O'Connor, JJ. Nolan, J., dissenting. Lynch, J., dissenting
in part. O'Connor, J., concurring in [***5] part and dissenting in
part.
OPINIONBY: LIACOS
OPINION: [*419] [**627] We are
asked to decide whether the substituted judgment of a person in a persistent
vegetative state that the artificial maintenance of his nutrition and hydration
be discontinued shall be honored. The effectuation of the ward's wishes is
supported by his wife-guardian and his family, but is opposed by his attending
physicians and the defendant hospital. We are faced again with a case where
"[a]dvances in medical science have given doctors greater control over the time
and nature of death" and where physicians have developed a "range of options . .
. to postpone death irrespective of the effect on the patient."
Superintendent of Belchertown State School v. Saikewicz, 373
Mass. 728, 737 (1977). We recognize that "[t]he case . . . raises moral, social,
technological, philosophical, and legal questions involving the interplay of
many disciplines. No one person or profession has all the answers." Matter
of Conroy, 98 N.J. 321, 344 (1985).
Sensitive to the significance
and complexity of our decision, we do not shirk our responsibility, for we are
aware that the advances of medical science and technology [***6] are
"compelling the public, through the courts, if not the legislatures, to
formulate new standards and procedures for measuring the conduct of persons
involved in the health care of persons with irreversible brain damage."
Severns v. Wilmington Medical Center, Inc., 421 A.2d 1334,
1344 (Del. 1980). n1 It has been said that "we are on the threshold of new
terrain -- the penumbra where death begins but life, in some form, continues. We
have been led to it by the medical miracles which now compel us to distinguish
between 'death,' as we have known it, and death in which the body lives in some
fashion but the brain (or a [*420] significant part of it) does
not." Id. See, in accord, Barber v. Superior Court,
147 Cal. App. 3d 1006, 1014 (1983). n2
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n1 Thus, "the
drive to sustain life can conflict with another fundamental (arguably more
venerable) objective of medicine -- the relief of suffering." President's
Commission for the Study of Ethical Problems in Medicine and Biomedical and
Behavioral Research, Deciding to Forego Life-Sustaining Treatment 15 (1983)
(hereinafter, President's Commission Report). [***7]
n2 "It
is now possible to hold such persons on the threshold of death for an
indeterminate period of time by utilizing extraordinary mechanical or other
artificial means to sustain their vital bodily functions. The procedures used
can be accurately described as a means of prolonging the dying process rather
than a means of continuing life." John F. Kennedy Memorial Hosp., Inc.
v. Bludworth, 452 So.2d 921, 923 (Fla. 1984).
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In Saikewicz, supra, and cases following it, we have been
confronted with some of the legal implications of these new medical advances, as
had been the Supreme Court of New Jersey earlier in Matter of Quinlan,
70 N.J. 10, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976). We have determined that, in
certain circumstances, further medical treatment may be discontinued. The
Supreme Court of New Jersey has recently restated the dilemma: "As scientific
advances make it possible for us to live longer than ever before, even when most
of our physical and mental capacities have been irrevocably lost, patients and
their families are increasingly [***8] asserting a right to die a
natural death without undue dependence on medical technology or unnecessarily
protracted agony -- in short, a right to 'die with dignity.'" Matter of
Conroy, supra at 343. n3 It is in this context that we [**628]
turn to consider the facts and the law applicable to this appeal.
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n3 The President's Commission Report reveals that, between 1900 and
1983, the causes and the places of death have changed dramatically. Death caused
by communicable disease has declined sharply; most deaths now are caused by
heart disease, cancer, and cerebrovascular disease or illness -- "illnesses that
occur later in life and that are ordinarily progressive for some years before
death." Id. at 16. Institutional settings (hospitals and nursing homes)
were the sites of 50% of all deaths in 1949, of over 70% by 1977, and, by 1983,
of over 80%. Id. at 17-18. The Commission, thus, has stated: "Once
someone realizes that the time and manner of death are substantially under the
control of medical science, he or she wants to be protected against decisions
that make death too easy and quick as well as from those that make it too
agonizing and prolonged." Id. at 23. The Commission notes, also, that
"[f]or almost any life-threatening condition, some intervention can now delay
the moment of death." Id. at 1.
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[*421] 1. The Facts.
a. The medical
incident and initial proceedings. Paul E. Brophy, Sr. (Brophy), was
afflicted on March 22, 1983, by the rupture of an aneurysm located at the apex
of the basilar artery. Prior to that time, Brophy had been a healthy, robust
man, who had been employed by the town of Easton as a fireman and emergency
medical technician. He enjoyed deer hunting, fishing, gardening, and performing
household chores. About midnight on March 22, 1983, he complained to his wife,
Patricia, of a severe, "splitting" headache. He became unconscious. His wife
called the Easton fire department, and Brophy was transported to Goddard
Hospital. An angiogram at Goddard Hospital revealed the aneurysm. Surgery ensued
on April 6, 1983, but was not successful. He has never regained consciousness.
Brophy is now in a condition described as a "persistent vegetative state." n4 He
is unable to chew or swallow, and is maintained by an artificial device,
surgically inserted on December 22, 1983, known as a gastrostomy tube (G-tube)
through which he receives nutrition and hydration. On June 28, 1983, he was
transferred to the New England Sinai Hospital (hospital), where
[***10] he remains as a patient.
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n4 A
physician who performed a neurological evaluation of Brophy testified that a
persistent vegetative state is a condition in which the patient:
"(a) shows no evidence of verbal or non-verbal communication;
"(b) demonstrates no purposeful movement or motor ability;
"(c) is
unable to interact purposely with stimulation provided by his environment;
"(d) is unable to provide for his own basic needs;
"(e) demonstrates
all of the above for longer than three months."
This
definition is consistent with the description of a persistent vegetative state
in the President's Commission Report, which also states: "Most of what makes
someone a distinctive individual is lost when the person is unconscious,
especially if he or she will always remain so. Personality, memory, purposive
action, social interaction, sentience, thought, and even emotional states are
gone. Only vegetative functions and reflexes persist. If food is supplied, the
digestive system functions, and uncontrolled evacuation occurs; the kidneys
produce urine; the heart, lungs, and blood vessels continue to move air and
blood; and nutrients are distributed in the body." (Footnote omitted.)
Id. at 174-175.
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[*422] Brophy's wife and family wish the G-tube removed or
clamped. When the physicians and hospital refused, litigation was commenced by
Brophy's wife in the Probate and Family Court Department. A judge of the Probate
Court, n5 after extensive [**629] hearings, found that Brophy, now
incompetent, would, if competent, decline to receive food and water in this
manner, and that Brophy's wife and guardian, Patricia E. Brophy, and his family
and relatives agree with this choice. Nevertheless, the judge ordered the
continuation of nutrition and hydration by use of the G-tube and enjoined both
the hospital and the guardian from removing or clamping the tube. We now set
aside the judgment and remand the case for entry of a new judgment. In doing so,
we sustain that portion of the judgment which respects the right of the hospital
to refuse to remove or clamp the G-tube, but authorize the guardian to remove
Brophy [*423] from the hospital to the care of other physicians who
will honor Brophy's wishes.
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n5 The procedural facts
are summarized as follows: On February 6, 1985, Brophy's wife, in her capacity
as legal guardian for her husband, filed a complaint for declaratory judgment in
the Probate Court for Norfolk County requesting, inter alia, a judgment granting
her the authority to order discontinuance of all life sustaining treatment for
her husband, including artificial nutrition and hydration. On the same day the
complaint was filed, a judge in the Probate Court ordered the treating
physicians to continue all life sustaining measures until further order of the
court. The judge also appointed John Dugan as guardian ad litem-investigator,
and ordered him to report to the court concerning the matter.
On
February 8, 1985, pursuant to an order of the Probate Court, the plaintiff filed
an amended complaint which named the hospital as defendant. On March 4, 1985,
the hospital answered the amended complaint. On May 21, 1985, the hospital filed
a motion to dismiss the complaint, and a motion to substitute the guardian ad
litem as the proper party defendant. The motion to dismiss was docketed but not
heard; the motion to substitute was denied. Evidentiary hearings were held on
May 22, 23, 24, 28, 29, 30, and 31, 1985. On July 19, 1985, the plaintiff moved
to reopen the evidence. The motion was allowed, and additional testimony was
taken on September 4, 1985. On October 21, 1985, the probate judge issued
extensive findings of fact, conclusions of law, and judgment consistent
therewith. Originally, the probate judge stated that the motion to dismiss was
not formally presented to the court and was, accordingly, not acted upon. On
November 29, 1985, in entering judgment with respect to the defendant's motion
to amend the procedural background, the judge stated that the motion to dismiss
was denied nunc pro tunc. The plaintiff filed a notice of appeal on December 4,
1985, and on December 20, 1985, the defendant appealed from the denial of its
motion to dismiss. We transferred the case to this court on our own motion.
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b. The medical facts.
Diagnostic techniques utilized to determine the nature of Brophy's illness
revealed subarachnoid bleeding in the posterior fossa surrounding the upper
brain stem. Later, an angiogram revealed an aneurysm located at the apex of the
basilar artery. On April 6, 1983, Brophy underwent a right frontotemporal
craniotomy. Shortly after surgery, he received several CT scans which showed
extensive damage, namely, complete infarction of his left posterior cerebral
artery and infarction of the right temporal lobe of the brain. After surgery, he
initially received nutrition by means of a nasogastric tube.
On June 28,
1983, Brophy was transferred to the New England Sinai Hospital. He received
intensive physical and speech therapy for about three to four weeks. After he
showed no response to that therapy, it was permanently discontinued. On July 7,
1983, Doctor Ferey Shahrokhi diagnosed Brophy as being in a "semi-vegetative or
vegetative state." n6 In August, 1983, he contracted pneumonia, and the hospital
requested his wife's instructions regarding a "do not resuscitate" order (DNR
order) in the event of a cardiac arrest. Mrs. Brophy requested a DNR order, and
[***13] one was entered on his chart.
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n6
During the consultation, Brophy showed no response to verbal stimuli, but his
right eye opened at times in response to painful stimuli. He made "slight but
appropriate movement in both upper extremities" when pressure was applied to his
sternum. He also withdrew his feet when they were pricked by a pin.
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On December 21, 1983, Brophy was transferred to the Cardinal Cushing
General Hospital, with the consent of his wife, and on December 22, 1983, he
underwent a surgical procedure in which a G-tube was inserted through a stoma in
the abdominal wall into the stomach to provide him with nutrition and hydration.
On December 29, 1983, he was discharged from the Cardinal Cushing General
Hospital and was readmitted into the New England Sinai Hospital.
[*424] Although Brophy is not technically brain dead, n7 he
has suffered serious and irreversible damage to his brain. n8 Some
[**630] areas of his brain remain undamaged n9 but have been
stranded and left dysfunctional. n10 The [***14] damage makes him
unable to integrate input from his environment, and to commence voluntary
activity; he lacks cognitive functioning such as reasoning. n11 Although his
body responds to certain stimuli, it is probable that the actions are reflexive
and do not result from cognitive activity. n12 [*425] He appears to
be comfortable, and, on the occasions when he shows signs of discomfort, n13 it
appears that medication ameliorates that discomfort.
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n7
The probate judge cited three basic criteria for brain death, in line with the
Harvard ad hoc committee's 1968 definition: "(a) unresponsiveness to normally
painful stimuli; (b) absence of spontaneous movements or breathing; and, (c)
absence of reflexes." None of those criteria apply to Brophy.
n8 The
probate judge recounted the damage:
"(a) The left side of his thalamus is 90% destroyed.
"(b)
The right side of his thalamus is 20% destroyed.
"(c) There is damage to
his left temporal lobe.
"(d) There is damage to his left occipital lobe.
"(e) Fifty percent of his left parietal lobe has been destroyed.
"(f)
The anterior aspect of his right temporal lobe has been damaged.
"(g) The
medial portion of his mid-brain has been damaged, with a resulting loss of
mid-brain tissue."
Brophy also suffers from a condition known as
hydrocephalus -- the excessive accumulation of cerebral spinal fluid inside the
skull. This condition could be relieved somewhat by surgery, but the probate
judge found that the surgical procedure involved would be highly invasive, would
produce only minor improvement, and would not, in all probability, restore his
cognitive function. [***15]
n9 The areas not damaged
include: (a) his frontal lobes; (b) his right parietal lobe; (c) his right
occipital lobe; (d) fifty per cent of his left parietal lobe; (e) the lower
portion of his brain stem; (f) the bulk of the cortex.
An
electroencephalogram (EEG) performed on April 13, 1984, was abnormal, but did
indicate controlled electrical activity generated by millions of cortical
neurons, which were normal.
n10 Brophy's cerebral cortex, which controls
thought and intellectual process, integrates input from his environment, and
commences and controls voluntary body activity, is largely intact. However, in
order to function, the cortex requires stimulation from the thalamus, which
conducts impulses to the cortex.
n11 The probate judge found that it is
presently not known with any reasonable degree of medical certainty whether he
is able to experience physical pain and suffering. The judge was able to find,
however, that it is highly improbable that he is capable of experiencing mental
anguish because the cognitive portion of his brain is not functioning.
n12 Mostly, Brophy shows simplified and stereotyped reactions and
reflexes, regardless of the stimulus applied. He is unable to communicate by eye
movement, facial expression, or purposeful body movement, and appears incapable
of verbal or nonverbal communication. [***16]
n13 The signs
of discomfort are that he makes more rapid body motions, appears more animated,
and displays rapid eye movement.
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According to the
testimony of Dr. Ronald Cranford, who has made extensive studies regarding the
condition of persistent vegetative state, n14 the likelihood of Brophy's
regaining cognitive functioning is substantially less than one per cent. n15 The
probate judge found that it is highly unlikely that he will ever regain
cognitive behavior, the ability to communicate, or the capability of interacting
purposefully with his environment.
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n14 Brophy does not
have a typical form of persistent vegetative state. Usually ischemia, the lack
of blood flow to the higher centers of the brain, particularly the cortex,
results in damage to those areas, causing a persistent vegetative state. His
damage is located primarily in the lower centers of the brain, mainly the
thalamus.
n15 Doctor Cranford was aware of only two cases in the
literature where patients in a persistent vegetative state for over one month
regained cognitive awareness. Doctor Cranford testified that neither of the two
individuals recovered completely: "They were left in a state that some people,
including myself . . . would [view] as worse than the vegetative state."
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Apart from the extreme injury to his
brain, Brophy's other organs are functioning relatively well. The judge found
that he is not terminally ill, nor is he in danger of imminent death from any
other medical cause. n16 It appears that he may live in a persistent vegetative
state for several years, although a non-aggressive treatment plan will probably
shorten his life.
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n16 Brophy breathes on his own, without
a respirator, although he does have a tracheostomy tube in his trachea. This
permits removal of excess secretions which could plug his airways. That tube
does not operate mechanically. All of his other major organs function normally
and without mechanical assistance.
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Brophy is dependent on
the G-tube for life sustaining nutrition and hydration. The G-tube is a pliable
silicone tube, about one and one-half feet in length with two openings at the
top. [*426] Food enters the larger n17 opening of the G-tube via
plastic tubing, some two and one-half feet long, which in turn is connected to a
plastic [***18] bag which hangs above the level of the patient
(allowing the liquid food n18 to flow from that bag by means of gravity into the
G-tube). Brophy is fed four times a day, by a [**631] nurse who
pours liquid food into the plastic bag. Nothing mechanical regulates the flow of
food from the bag to the plastic tubing to the G-tube to his stomach.
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- -
n17 The G-tube also has a smaller opening which is used to help keep
the G-tube from slipping out of the stoma.
n18 The liquid food is
similar to baby food and includes the hydration which Brophy requires to
survive.
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While the use of a G-tube can have certain
adverse side effects, the judge found that Brophy had experienced none of the
adverse side effects during a period of approximately eighteen months. The judge
found that it is not likely that he will experience complications in the future.
The judge concluded that now that the G-tube is in place, it is the least
intrusive, least invasive, and most problem-free way of providing nutrition and
hydration to him. [***19] n19 Brophy shows no signs or symptoms of
discomfort as a result of the use of the G-tube. The judge found that
utilization of the G-tube is not "painful, uncomfortable, burdensome, unusual,
hazardous, invasive or intrusive," even in relation to a conscious patient.
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n19 Other methods of providing artificial means of
nutrition and hydration are intravenous feeding, central hyperalimentation,
nasogastric tubes, and surgical procedures. These methods, and their
shortcomings, are discussed in Matter of Hier, 18
Mass. App. Ct. 200, 203-206 (1984). The probate judge considered these methods
and concluded that continuation of the G-tube to be the least intrusive for
Brophy.
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Removal of the G-tube likely would create various
effects resulting from the lack of hydration and nutrition, leading ultimately
to death. The judge found that death by dehydration is extremely painful and
uncomfortable for a human being. n20
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n20 The judge
concluded that the possibility that Brophy would experience a painful death
"cannot be ruled out." This finding apparently was based on the testimony of
Brophy's attending physician and seems inconsistent with the judge's findings as
to the nature of Brophy's persistent vegetative state. See note 4,
supra. The American Academy of Neurology, as amicus, claims in its
brief that patients in a persistent vegetative state, like Brophy, do not
experience pain and suffering. They observe that this is so because, inter alia,
studies in the field have indicated to date that a characteristic of the
persistent vegetative state is "overwhelming bilateral damage to the cerebral
hemispheres to a degree incompatible with consciousness or the capacity to
experience pain or suffering." See Dougherty, Rawlinson, Levy & Plum,
Hypoxic-ischemic brain injury and the vegetative state: Clinical and
neuropathologic correlation, 31 Neurology 991, 995 (1981). This view also was
expressed by Drs. Butler and Cranford in their testimony before the Probate
Court. Additionally, such a finding appears in conflict with much of the
literature in the field. See President's Commission Report at 181-182 ("Pain and
suffering are absent, as are joy, satisfaction, and pleasure"). See also
Matter of Conroy, 98 N.J. 321, 394-395 (1985) (Handler, J., concurring
in part and dissenting in part).
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[*427] Brophy requires constant care. He receives seven and
one-half hours of nursing care each day. He has no control of his muscles or
movements. The judge found that his care by others consists of "bathing,
shaving, mouth care, grooming, caring for his bowels and bladder, changing his
bed linens and clothing, turning him in bed to prevent bedsores and providing
him with food and hydration through the G Tube." n21
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n21
In Matter of Conroy, supra at 398-399, Judge Handler, in his separate
opinion, describes this condition: "[T]he medical and nursing treatment of
individuals . . . suffering from these conditions entails the constant and
extensive handling and manipulation of the body. At some point, such a course of
treatment upon the insensate patient is bound to touch the sensibilities of even
the most detached observer. Eventually, pervasive bodily intrusions, even for
the best motives, will arouse feelings akin to humiliation and mortification for
the helpless patient."
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c. The finding as
[***21] to substituted judgment. The judge found on the
basis of ample evidence which no one disputes, that Brophy's judgment would be
to decline the provision of food and water and to terminate his life. In
reaching that conclusion, the judge considered various factors including the
following: (1) Brophy's expressed preferences; (2) his religious convictions and
their relation to refusal of treatment; (3) the impact on his family; (4) the
probability of adverse side effects; and (5) the prognosis, both with and
without treatment. The judge also considered present and future incompetency as
an element which Brophy would consider in his decision-making process.
[*428] The judge relied on several statements made by Brophy
prior to the onset of his [**632] illness. n22 Although he never had
discussed specifically whether a G-tube or feeding tube should be withdrawn in
the event that he was diagnosed as being in a persistent vegetative state
following his surgery, the judge inferred that, if presently competent, Brophy
would choose to forgo artificial nutrition and hydration by means of a G-tube.
The judge found that Brophy would not likely view his own religion as a barrier
to [***22] that choice.
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n22 About ten years
ago, discussing Karen Ann Quinlan, Brophy stated to his wife, "I don't ever want
to be on a life-support system. No way do I want to live like that; that is not
living." He had a favorite saying: "When your ticket is punched, it is punched."
Approximately five to six years ago, he helped to rescue from a burning truck a
man who received extensive burns and who died a few months later. He tossed the
commendation he received for bravery in the trash and said, "I should have been
five minutes later. It would have been all over for him." He also said to his
brother regarding that incident, "If I'm ever like that, just shoot me, pull the
plug." About one week prior to his illness, in discussing a local teenager who
had been put on a life support system he said, "No way, don't ever let that
happen to me, no way." Within twelve hours after being transported to Goddard
Hospital following the rupture of the aneurysm, he stated to one of his
daughters, "If I can't sit up to kiss one of my beautiful daughters, I may as
well be six feet under."
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Footnotes- - - - - - - - - - - - - - - - - [***23]
Brophy's
wife and guardian, Patricia, in reaching her decision that her husband's "life
is over" went through long and agonizing research, reflection, and prayer. She
discussed her decision with family and clergy. n23 She has performed her duties
as guardian and spouse with the highest degree of ethical and moral exaction.
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- - - - - - -
n23 Patricia Brophy has discussed her husband's situation
with her parish priest. He believes that her decision is based on love and
compassion (and the judge agrees, as do we) for both her husband and her family.
Her decision was not based in any way on financial considerations. There would
be no adverse impact on third parties such as minor children, and Patricia
Brophy has the support of her family and relatives in her decision.
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- -
The matter was also thoroughly investigated by the guardian ad
litem, who made three reports. He recommended to the court that the G-tube not
be removed, that a DNR order be entered on Brophy's chart, and that a
nonaggressive treatment plan be implemented in [***24] the event of
a life-threatening infection. n24
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- -Footnotes- - - - - - - - - - - - - - - - - -
n24 Such orders are
incorporated in the judgment and are not in issue on this appeal.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
[*429] Doctor Lajos Koncz, Brophy's attending physician,
refused to carry out Patricia Brophy's request because it is his belief that he
would wilfully be causing Brophy's death. Dr. Koncz discussed the matter with
the medical and nursing staff at the hospital, who essentially agreed with his
opinion. Dr. Richard Field, physician-in-chief at the hospital, took the
position that he could not, personally or officially, comply with the request
because it would constitute a harmful act which would deliberately produce
death. The medical executive committee and the board of directors of the
hospital indorsed the position of Drs. Field and Koncz. The board of directors,
however, was not opposed to transferring Brophy to another medical institution
if the Probate Court authorized and ordered the removal of the G-tube. A
significant portion of the medical community disagrees with [***25]
New England Sinai Hospital and considers it appropriate to withhold hydration
and nutrition from individuals like Brophy when that is the wish of the patient
and his family. See notes 37 and 38, infra.
2. The
law.
a. The right to refuse treatment. We begin with the
recognition that we are involved in a difficult and demanding area of the law in
which each case presents issues of fundamental importance that require more than
the mere "mechanical reliance on legal doctrine." Superintendent of
Belchertown State School v. Saikewicz, 373 Mass. 728, 736 (1977).
We encourage and seek insights and "the collective guidance of those in health
care, moral ethics, philosophy, and other disciplines." Id. n25 We
share a concern with [**633] the hospital, the guardians, the
physicians, and the amici curiae for acting in the best interests of the
patient. See id. at 737. We are aided by our determination that the
issue in the case at hand is narrowly drawn and is limited solely to whether the
substituted judgment of an incompetent patient-ward in a persistent vegetative
state to refuse the continuance of artificial means of nutrition and hydration
should be honored. [***26]
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- - - - -Footnotes- - - - - - - - - - - - - - - - - -
n25 We have not
been disappointed, and once again we have been aided by the work of the parties
and the Probate Court judge and the outstanding briefs filed by the amici
curiae.
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- - - - - - - - - - -
[*430] The right of a patient to
refuse medical treatment arises both from the common law and the unwritten and
penumbral constitutional right to privacy. See Harnish v.
Children's Hosp. Medical Center, 387 Mass. 152, 154 (1982); Matter of
Spring, 380 Mass. 629, 634 (1980); Commissioner of Correction
v. Myers, 379 Mass. 255, 261 (1979); Saikewicz, supra at
738-740. The common law's implicit recognition that "a person has a strong
interest in being free from nonconsensual invasion of his bodily integrity,"
id. at 739, is now explicit in this Commonwealth. See Harnish
v. Children's Hosp. Medical Center, supra.
"The law
protects [a person's] right to make [his] own decision to accept or reject
treatment, whether that decision is wise or unwise." Lane v.
Candura, 6 Mass. App. Ct. 377, [***27] 383 (1978). Cf.
Commissioner of Correction v. Myers, supra at 261, 263-264.
This right has come to be widely recognized and respected by the courts of this
nation. See, e.g., Rasmussen v. Fleming, 154 Ariz. 200,
(1986) (741 P.2d 667, 670-671 [Ariz. App. 1986]), and cases
cited; n26 Bartling v. Superior Court, 163 Cal. App. 3d 186,
195 (1984); Matter of Conroy, 98 N.J. 321, 346-347 (1985); Matter
of Storar, 52 N.Y.2d 363, 376-377 (1981).
- - - - - - - - -
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n26 We
note that a petition for review of the Rasmussen case has been
submitted to the Arizona Supreme Court.
- - - - - - - - - - - - -
- - - -End Footnotes- - - - - - - - - - - - - - - - -
The right of
self-determination and individual autonomy has its roots deep in our history.
John Stuart Mill stated the concept succinctly: "[T]he only purpose for which
power can be rightfully exercised over any member of a civilised community,
against his will, is to prevent harm to others. His own good, either physical or
moral, is not a sufficient warrant. He cannot rightfully be compelled to do or
forbear because it [***28] will be better for him to do so, because
it will make him happier, because, in the opinion of others, to do so would be
wise, or even right." Mill, On Liberty, in 43 Great Books of the Western World
271 (R. Hutchins ed. 1952), quoted in In re Caulk, 125 N.H. 226, 236
(1984) (Douglas, J., dissenting).
It is in recognition of these
fundamental principles of individual autonomy that we sought, in
Saikewicz, to shift the [*431] emphasis away from a
paternalistic view of what is "best" for a patient toward a reaffirmation that
the basic question is what decision will comport with the will of the person
involved, whether that person be competent or incompetent. As to the latter type
of person, we concluded that the doctrine of substituted judgment, while not
without its shortcomings, best serves to emphasize the importance of honoring
the privacy and dignity of the individual. n27 Thus, we stated
[**634] that "we recognize a general right in all persons to refuse
medical treatment in appropriate circumstances. The recognition of that right
must extend to the case of an incompetent, as well as a competent, patient
because the value of human dignity extends to both." [***29]
Saikewicz, supra at 745. We emphasized further, that "[i]t does not
advance the interest of the State or the ward to treat the ward as a person of
lesser status or dignity than others. To protect the incompetent person within
its power, the State must recognize the dignity and worth of such a person and
afford to that person the same panoply of rights and choices it recognizes in
competent persons." Id. at 746. This theme has reappeared in many of
our recent decisions where the protection of rights of an incompetent person was
at stake. A [*432] significant aspect of this right of privacy is
the right to be free of nonconsensual invasion of one's bodily integrity.
Matter of Spring, supra. See Custody of a Minor (No. 1), 385
Mass. 697, 710 (1982); Matter of Moe, 385 Mass. 555, 564-565
(1982); Matter of Hier, 18 Mass. App. Ct. 200, 207 (1984); Lane
v. Candura, supra. See also President's Commission Report,
supra at 121 ("In general, a person's choices regarding care ought to
override the assessments of others about what best serves that person").
Id. at 136 ("decisionmaking for incapacitated patients should be guided
by the principle [***30] of substituted judgment, which promotes the
underlying values of self-determination . . .").
- - - - - - - -
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n27 The
Florida Supreme Court has recognized the importance of honoring the privacy and
dignity of both competent and incompetent persons. As to a competent person
suffering from Lou Gehrig's disease (amyotrophic lateral sclerosis), who sought
removal of a respirator, the court in Satz v. Perlmutter, 379
So.2d 359 (Fla. 1980), adopted the opinion of its District Court of Appeal, 362
So.2d 160 (Fla. Dist. Ct. App. 1978), and its language as follows: "It is all
very convenient to insist on continuing Mr. Perlmutter's life so that there can
be no question of foul play, no resulting civil liability and no possible
trespass on medical ethics. However, it is quite another matter to do so at the
patient's sole expense and against his competent will, thus inflicting never
ending physical torture on his body until the inevitable, but artificially
suspended, moment of death. Such a course of conduct invades the patient's
constitutional right of privacy, removes his freedom of choice and invades his
right to self-determine." 362 So.2d at 164.
Later, in John F. Kennedy Memorial Hosp., Inc.
v. Bludworth, 452
So. 2d 921, 924 (Fla. 1984), the Florida Supreme Court, having quoted the above
passage with approval, stated, as to an incompetent person: "This right of
terminally ill patients should not be lost when they suffer irreversible brain
damage, become comatose, and are no longer able to personally express their
wishes to discontinue the use of extraordinary artificial support systems."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - - [***31]
The right to refuse medical treatment
in life threatening situations is not absolute. Commissioner of Correction
v. Myers, 379 Mass. 255, 261-262 (1979). Superintendent of
Belchertown State School v. Saikewicz, 373 Mass.
728, 740-741 (1977). Matter of Conroy, supra at 348. We have noted,
however, that "the State's interest in the preservation of life does not
invariably control the right to refuse treatment in cases of positive
prognosis." Commissioner of Correction v. Myers, supra at 263.
See Lane v. Candura, supra (recognizing a competent person's
right to refuse amputation of a gangrenous leg). We have recognized at least
four countervailing State interests: (1) the preservation of life; (2) the
protection of interests of innocent third parties; (3) the prevention of
suicide; and (4) the maintenance of the ethical integrity of the medical
profession. Saikewicz, supra at 741. See Matter of Spring,
supra at 641; Matter of Hier, supra at 210. Other State courts
have identified and applied similar State interests. See Bouvia v.
Superior Court, 179 Cal. App. 3d 1127, 1142 (1986); Foody v.
Manchester Memorial Hosp., [***32] 40 Conn. Supp. 127, 133
(Super. Ct. 1984); John F. Kennedy Memorial Hosp., Inc. v.
Bludworth, 452 So.2d 921, 924 (Fla. 1984). Matter of Conroy, supra
at 348-349, and cases cited. Cf. In re L.H.R., 253 Ga. 439, 446 (1984);
Leach v. Shapiro, 13 Ohio App. 3d 393, 395 (Ct. App. 1984).
Where appropriate, we have been willing to consider other State interests as
well, particularly when they are specifically related to the right to privacy.
See Commissioner [*433] of Correction v.
Myers, supra at 264 (Commonwealth's interest in upholding orderly prison
administration decisive against prisoner's assertion of privacy rights).
We have contended that the primary goal of the substituted judgment
standard is "to determine with as much accuracy as possible [**635]
the wants and needs of the individual involved." Saikewicz, supra at
750. The parties do not contest that the evidence was sufficient to support the
judge's findings concerning Brophy's subjective viewpoint. We agree.
Accepting that Brophy's substituted judgment would be to discontinue
providing nutrients through the G-tube, we are left only with the question
whether the Commonwealth's [***33] interests require that his
judgment be overridden. It is natural to begin with the most significant
interest in this case, the interest in the preservation of life. See
Saikewicz, supra at 741; Commissioner of Correction v.
Myers, supra at 262; Matter of Conroy, 98 N.J. 321, 349 (1985).
The concern for the preservation of the life of the patient normally
involves an interest in the prolongation of life. Thus, the State's interest in
preserving life is very high when "human life [can] be saved where the
affliction is curable." Saikewicz, supra at 742. That interest wanes
when the underlying affliction is incurable and would "soon cause death
regardless of any medical treatment." Commissioner of Correction v.
Myers, supra at 262. Saikewicz, supra. The calculus shifts when
the issue is not "whether, but when, for how long, and at what cost to the
individual that life may be briefly extended." Id. Commissioner of
Correction v. Myers, supra. n28
- - - - - - - - - -
- - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n28 "The
general State interest in the preservation of life -- most weighty where the
patient, properly treated, can return to reasonable health, without great
suffering, and a decision to avoid treatment would be aberrational -- carries
far less weight where the patient is approaching the end of his normal life
span, where his afflictions are incapacitating, and where the best that medicine
can offer is an extension of suffering." Matter of Spring, 8 Mass. App.
Ct. 831, 845-846 (1979), rev'd on other grounds, 380 Mass. 629 (1980).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - - [***34]
When we balance the State's interest
in prolonging a patient's life against the rights of the patient to reject such
prolongation, [*434] we must recognize that the State's interest in
life encompasses a broader interest than mere corporeal existence. In certain,
thankfully rare, circumstances the burden of maintaining the corporeal existence
degrades the very humanity it was meant to serve. The law recognizes the
individual's right to preserve his humanity, even if to preserve his humanity
means to allow the natural processes of a disease or affliction to bring about a
death with dignity. n29 In stating this, we make no judgment based on our own
view of the value of Brophy's life, since we do not approve of an analysis of
State interests which focuses on Brophy's quality of life. Saikewicz,
supra at 754. See Matter of Conroy, supra at 367. The judge
correctly disavowed pronouncing judgment that Brophy's life is not worth
preserving.
- - - - - - - - - - - - - - - - - -Footnotes- - - - -
- - - - - - - - - - - - -
n29 Of course, the law does not permit
suicide. See text, infra at 439. Thus, the law does not permit
unlimited self-determination, nor give unqualified free choice over life.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - - [***35]
The duty of the State to preserve life
must encompass a recognition of an individual's right to avoid circumstances in
which the individual himself would feel that efforts to sustain life demean or
degrade his humanity. See Matter of Dinnerstein, 6 Mass. App. Ct. 466,
473 (1978). It is antithetical to our scheme of ordered liberty and to our
respect for the autonomy of the individual for the State to make decisions
regarding the individual's quality of life. It is for the patient to decide such
issues. Our role is limited to ensuring that a refusal of treatment does not
violate legal norms. Erickson v. Dilgard, 44 Misc. 2d 27, 28
(N.Y. Sup. Ct. 1962).
In this case, the State's concern for the
preservation of the life of the patient is implicated. Here, Brophy is not
terminally ill nor in danger of imminent death from any underlying physical
illness. It is true, however, that his life expectancy has been shortened by his
physical affliction. While the judge found that continued use of the
[**636] G-tube is not a highly invasive or intrusive procedure and
may not subject him to pain or suffering, he is left helpless and in a condition
which Brophy has indicated [***36] he would consider to be degrading
and without human dignity. In making this finding, it is clear that the judge
[*435] failed to consider that Brophy's judgment would be that being
maintained by use of the G-tube is indeed intrusive. Additionally, in our view,
the maintenance of Brophy, as described at 427 & note 21, supra,
for a period of several years, is intrusive treatment as matter of law.
No case in this Commonwealth has presented such a situation. For
example, in Saikewicz, supra, we declined to force the use of
highly invasive treatment or extraordinary measures in the case of a terminally
ill patient. In Matter of Dinnerstein, supra, the Appeals Court allowed
the entry of a no-code order in the case of a terminally ill patient suffering
from Alzheimer's disease, who was being fed by use of a nasogastric tube. We
approved of the decision in Lane v. Candura, 6 Mass. App. Ct.
377 (1978), where the Appeals Court refused to order a competent individual to
have her gangrenous leg amputated -- even though it would have saved her life. Commissioner of Correction v. Myers, supra at 263. In
Matter of Hier, 18 Mass. App. Ct. 200 (1984), the [***37]
Appeals Court refused to order surgery to reimplant a G-tube, an invasive
procedure. Cf. Matter of Spring, supra at 640 (discontinuance of
hemodialysis authorized).
A few States have decided cases with fact
patterns similar to the one at hand. The leading case is the New Jersey Supreme
Court decision in Matter of Conroy, supra. In that case the court would
have refused to force a patient who had less than a year to live to endure the
pain of a nasogastric tube used to supply nutrition and hydration, id.
at 339, 365 (patient died while appeal pending in appellate division),
id. at 341, rejected the distinction between active or passive
treatment and stated that "the primary focus should be the patient's desires and
experience of pain and enjoyment -- not the type of treatment involved."
Id. at 369. In rejecting this distinction, the New Jersey Supreme Court
overturned the appellate division, which had held that, because provision of
nutrition and hydration through a nasogastric tube was "ordinary" care, the
patient must be maintained by the nasogastric tube. Id. at 372. The
recent California case of Bouvia v. Superior Court, 179 Cal.
App. 3d 1127 [***38] (1986), reaffirmed the logic of Barber
v. [*436] Superior Court, 147 Cal. App. 3d 1006
(1983), and upheld the right of the patient, who was fully competent but
hopelessly quadriplegic and in continual pain, to end the use of a feeding tube
which had been inserted against her will. An intermediate Court of Appeals
decision in Florida similarly authorized the cessation of artificial feeding by
use of a nasogastric tube. Corbett v. D'Alessandro, 487 So.2d
368 (Fla. Dist. Ct. App. 1986) ("we see no reason to differentiate between the
multitude of artificial devices that may be available to prolong the moment of
death"). Id. at 371.
The Supreme Court of New Jersey has stated
that the State's interest in preserving life "generally gives way to the
patient's much stronger personal interest in directing the course of his own
life." Matter of Conroy, supra at 350. n30 The Supreme Court
of New Jersey did not consider the fact that a nasogastric tube is less invasive
than hemodialysis or a respirator. The court concluded that the individual's
interest in bodily integrity, which is weighed against competing State
interests, is a constant value to be considered. [***39]
Id. at 355. Both New Jersey and California courts consider the nature
of the treatment part of the [**637] calculus of the individual's
choice or judgment. See id. at 365-366; Barber v. Superior
Court, supra at 1019-1020; Bouvia v. Superior Court,
supra at 1143-1144. Although we have recognized that the invasiveness of
the treatment sought to be terminated is an important factor to be considered in
balancing the individual's and the State's interests, Saikewicz, supra
at 744, Commissioner of Correction v. Myers, supra at 263, we
agree with the New Jersey court's view that "the primary focus should be the
patient's desires and experience of pain and enjoyment -- not the type of
treatment involved." Matter of Conroy, supra at 369. n31 In
Superintendent of Belchertown [*437] State School v.
Saikewicz, 373 Mass. 728, 738, 743-744 (1977), we spoke with approval of
the distinction made by medical ethicists between extraordinary and ordinary
care. The Supreme Court of New Jersey in Matter of Quinlan, 70 N.J. 10
(1976), had considered the distinction to have significance at that time in the
medical community. We recognize that, [***40] more recently, such a
distinction has been criticized. See, e.g., Matter of Conroy, supra at
371-372, citing President's Commission Report at 84-88. n32
- - -
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n30 The California courts are essentially in accord. See Barber
v. Superior Court, supra at 1018, and Bouvia v.
Superior Court, supra at 1137-1138.
n31 In Corbett v.
D'Alessandro, supra, the court stated: "When, therefore, it may be
determined by reason of the advanced scientific and medical technologies of this
day that Life has, through causes beyond our control, reached the unconscious
and vegetative state where all that remains is the forced function of the body's
vital functions, including the artificial sustenance of the body itself, then we
recognize the right to allow the natural consequence of the removal of those
artificial life sustaining measures." This position is consistent with the
position of the President's Commission. See note 34, infra. Our Appeals
Court has also rejected the supposed legal distinction between treatment and the
provision, by artificial means, of nutrition and hydration. See Matter of
Hier, 18 Mass. App. Ct. 200, 207 (1984). [***41]
n32
The President's Commission has also stated: "Life-sustaining treatment, as used
here, encompasses all health care interventions that have the effect of
increasing the life span of the patient. Although the term includes respirators,
kidney machines, and all the paraphernalia of modern medicine, it also includes
home physical therapy, nursing support for activities of daily living, and
special feeding procedures, provided that one of the effects of the treatment is
to prolong a patient's life." President's Commission Report at 3.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
While we believe that the distinction between extraordinary and
ordinary care is a factor to be considered, the use of such a distinction as the
sole, or major, factor of decision tends, in a case such as this, to create a
distinction without meaning. Additionally, to state that the maintenance of
nutrition and hydration by the use of the existing G-tube is only ordinary is to
ignore the total circumstances of Brophy's situation. He cannot swallow. The
judge found that Brophy may be maintained by the use of the G-tube for "several
years," the longest recorded [***42] survival by such means
extending for thirty-seven years. Clearly, to be maintained by such artificial
means over an extended period is not only intrusive but extraordinary.
A
G-tube was inserted as a means of providing time for fuller determination of his
prognosis. Insertion of the G-tube might be considered extraordinary care, while
its maintenance [*438] might be ordinary care. n33 Thus, had the
guardian sought to preclude the surgical insertion of the G-tube, a court may
well have upheld the patient's right to refuse such surgical intervention to
prolong his life. See Matter of Hier, supra. Just as
the distinction between extraordinary and ordinary arguably obscures the real
issue, n34 so, too, the distinction [**638] between withholding and
withdrawing treatment has no moral significance. n35 "Moreover, from a policy
standpoint, it might well be unwise to forbid persons from discontinuing a
treatment under circumstances in which the treatment could permissibly be
withheld. Such a rule could discourage families and doctors from even attempting
certain types of care and could thereby force them into hasty and premature
decisions to allow a patient to die." Matter [***43] of
Conroy, supra at 370. See Barber v. Superior Court, 147
Cal. App. 3d 1006, 1016-1019 (1983); Withholding or Withdrawing Life Prolonging
Medical Treatment, Statement of the AMA Council on Ethical and Judicial Affairs,
quoted in Bouvia v. Superior Court, 179 Cal. App. 3d 1127,
1141 (1986). Cf. Matter of Torres, 357 N.W.2d 332, 339 (Minn. 1984). A
person who "has a right to refuse treatment in the first instance [ ] has a
concomitant right to discontinue it." Satz v. Permutter, 362
So.2d 160, 163 (Fla. App. 1978), aff'd, 379 So.2d 359 (Fla. 1980), quoted in Bartling v. Superior Court, 163 Cal. App. 3d 186, 194
n.4 (1984). In accord, President's Commission Report at 181-183.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
- -
n33 In another sense, what was viewed as extraordinary care ten
years ago might be considered ordinary care today.
n34 "As with the
other terms discussed, defining and applying a distinction between ordinary and
extraordinary treatment is both difficult and controversial and can lead to
inconsistent results, which makes the terms of questionable value in the
formulation of public policy in this area." President's Commission Report at 83.
See id. at 87-88. See also Matter of Conroy, supra at 370-371.
[***44]
n35 President's Commission Report at 61-62; 75, 77,
89; Lynn & Childress, Must Patients Always Be Given Food and Water? 13
Hastings Center Rep. at 17, 19, Oct. 1983.
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Thus, we
conclude that the State's interest in the preservation of life does not overcome
Brophy's right to discontinue treatment. [*439] Nor do we consider
his death to be against the State's interest in the prevention of suicide. He
suffers an "affliction," Saikewicz, 373 Mass. at 742, which makes him
incapable of swallowing. The discontinuance of the G-tube feedings will not be
the "death producing agent" set "in motion with the intent of causing his own
death." Id. at 743 n.11. n36 "Prevention of suicide is . . . an
inapplicable consideration . . . . 'A death which occurs after the removal of
life sustaining systems is from natural causes, neither set in motion nor
intended by the patient.' Welfare of Colyer, [99 Wash. 2d 114, 123
(1983)]." Rasmussen v. Fleming, 154 Ariz. 200,
(1986) (741 P.2d 667, 671 [Ariz. App 1986]). "[D]eclining
life-sustaining medical treatment may not properly [***45] be viewed
as an attempt to commit suicide. Refusing medical intervention merely allows the
disease to take its natural course; if death were eventually to occur, it would
be the result, primarily, of the underlying disease, and not the result of a
self-inflicted injury." Matter of Conroy, 98 N.J. 321, 350-351 (1985).
See, in accord, Bartling v. Superior Court, supra at 196.
Bouvia v. Superior Court, supra at 1114.
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n36 We note that the probate judge concluded that the "State's interest
in preventing suicide is not applicable to the Brophy matter."
-
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Last, we conclude also that, so long as we decline to force the hospital
to participate in removing or clamping Brophy's G-tube, there is no violation of
the integrity of the medical profession. The position we take in a case such as
this is consistent with the view of sound medical practice taken by the
representative bodies of the American Medical Association, the Massachusetts
Medical Society, n37 and that of many ethicists [*440] and
physicians. [***46] n38 We [**639] now turn to consider
briefly the position of the defendant hospital.
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n37 The
position of the Massachusetts Medical Society is expressed in its resolution
adopted July 17, 1985: "[T]he Massachusetts Medical Society recognizes the
autonomy rights of terminally ill and/or vegetative individuals who have
previously expressed their wishes to refuse treatment, including the use of
intravenous fluids and gastrointestinal feeding by tube and that implementation
of these wishes by a physician does not in itself constitute unethical medical
behavior provided that appropriate medical and family consultation is obtained."
n38 See President's Commission Report, passim. See also Rasmussen
v. Fleming, supra at 12-13, quoting from AMA Council on Ethical
and Judicial Affairs statement of 1986:
"Even if death is not imminent but a patient's coma is beyond
doubt irreversible and there are adequate safeguards to confirm the accuracy
of the diagnosis and with the concurrence of those who have responsibility for
the care of the patient, it is not unethical to discontinue all means of
life-prolonging medical treatment.
"Life-prolonging medical treatment
includes medication and artificially or technologically supplied respiration,
nutrition or hydration. In treating a terminally ill or irreversibly comatose
patient, the physician should determine whether the benefits of treatment
outweigh its burdens. At all times, the dignity of the patient should be
maintained."
Additionally, the probate judge found: "There are a
significant number of physicians and medical ethicists and a significant segment
of the hospital community who disagree concerning the issue of whether or not it
is morally and ethically appropriate to withhold food and water from a patient
in Brophy's condition, who is not terminally ill."
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[***47]
b. The rights and duties of the hospital.
The hospital argues that it has no constitutional, statutory, or common law
right to deny nutrition and hydration to Brophy so as to bring about his death.
n39 The probate judge held that the hospital and its medical staff "should not
be compelled to withhold food and water to a patient, contrary to its moral and
ethical principles, when such principles are recognized and accepted within a
significant segment of the medical profession and the hospital community." We
agree. Neither G. L. c. 111, § 70E (1984 ed.), the Massachusetts patients'
rights statute, the doctrine of informed consent, nor any other provision of law
requires the [*441] hospital to cease hydration and nutrition upon
request of the guardian. There is nothing in Superintendent of Belchertown
State School v. Saikewicz, 373 Mass. 728 (1977), and its progeny
which would justify compelling medical professionals, in a case such as this, to
take active measures which are contrary to their view of their ethical duty
toward their patients. See Brandt v. St. Vincent Infirmary,
487 Ark. 431, 436-437 (701 S.W.2d 103, 106-107 [Ark. 1985]). There is
substantial [***48] disagreement in the medical community over the
appropriate medical action. It would be particularly inappropriate to force the
hospital, which is willing to assist in a transfer of the patient, to take
affirmative steps to end the provision of nutrition and hydration to him. A
patient's right to refuse medical treatment does not warrant such an unnecessary
intrusion upon the hospital's ethical integrity in this case. n40
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- -
n39 No one cites us any authority to the contrary. Normally, the
interest in preserving the integrity of the medical profession is discussed in
terms of the impact that court-authorized removal or abstention from treatment
will have on the medical profession and on medical ethics generally.
Saikewicz, supra at 743-744. Matter of Conroy, supra at
351-353. In particular, in Saikewicz, supra at 744, we noted that it
was "not necessary to deny a right of self-determination to a patient in order
to recognize [such] interests." Whatever effect our decision will generally have
on medical ethics, see supra at 439-441, it is clear in this case that
we can preserve the ethical integrity of the hospital and its staff without
impact upon any patient right of self-determination. [***49]
n40 Since we uphold the judgment of the probate judge on this point, we
do not reach the question whether the motion to dismiss was properly denied. We
do note, however, that the plaintiff properly might have petitioned the Probate
Court for Bristol County, see G. L. c. 215, §§ 3, 7 (1984 ed.); G. L. c. 201, §
1 (1984 ed.), because that court was the situs of origin of Patricia Brophy's
guardianship. Even if we were to consider the guardianship and the present
action as one "case" within the meaning of G. L. c. 215, § 7, we would find
ample support for considering the present action on appeal in spite of any
defect in such jurisdiction below. Cf. Anderson v. Anderson,
354 Mass. 565, 567 (1968) (G. L. c. 215, § 7, found not applicable where first
action sought separate support, and different from second action instituted in
equity). We agree with the Probate Court judge that dismissing such an unusual
and pressing guardianship case would triumph form over substance and mark a
substantial injustice with unjustifiable delay to the benefit of no one. G. L.
c. 215, 28 (1984 ed.). G. L. c. 231A, § § 1, 4 (1984 ed.).
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[***50]
Conclusion. Accordingly, we uphold that
portion of the judgment which pertains to the hospital, but set aside that
portion of the judgment which enjoins the guardian from authorizing a facility
to remove or clamp Brophy's G-tube. A new judgment is to be entered ordering the
hospital to assist the guardian in transferring the ward to a suitable facility,
or to his [**640] home, where his wishes may be effectuated, and
authorizing the [*442] guardian to order such measures as she may
deem necessary and appropriate in the circumstances. n41
- - - -
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n41 Even though a significant change in Brophy's condition is unlikely,
the new judgment should, of course, include a provision for modification (as did
the original judgment), should any significant change or developments ensue. See
Saikewicz, supra at 730-731 n.3.
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So
ordered.
CONCURBY: O'CONNOR (In Part)
DISSENTBY: NOLAN; LYNCH (In Part); O'CONNOR (In Part)
DISSENT: Nolan, J. (dissenting).
The court
today has rendered an opinion which affronts logic, ethics, and
[***51] the dignity of the human person.
As to logic, the
court has built its entire case on an outrageously erroneous premise, i.e., food
and liquids are medical treatment. The issue is not whether the tube should be
inserted but whether food should be given through the tube. The process of
feeding is simply not medical treatment and is not invasive, as that
word is used in this context. Food and water are basic human needs. They are not
medicines and feeding them to a patient is just not medical treatment. Because
of this faulty premise, the court's conclusions must inevitably fall under the
weight of logic.
In the forum of ethics, despite the opinion's
high-blown language to the contrary, the court today has indorsed euthanasia and
suicide. Suicide is direct self-destruction and is intrinsically evil. No set of
circumstances can make it moral. Paul Brophy will die as a direct result of the
cessation of feeding. The ethical principle of double effect is totally
inapplicable here. This death by dehydration and starvation has been approved by
the court. He will not die from the aneurysm which precipitated loss of
consciousness, the surgery which was performed, the brain damage
[***52] that followed or the insertion of the G-tube. He will die as
a direct result of the refusal to feed him. He will starve to death, and the
court approves this death. See Bannon, Rx: Death by Dehydration, 12 Human Life
Rev., 70 (No. 3, 1986).
[*443] I pass over the glaring
weakness in the evidentiary basis for the finding that Paul Brophy would decline
provisions for food and water. The evidence that he knew the horrors of such a
death is not present in this case, and without such evidence it can be argued
persuasively that Brophy never made a judgment that food and water should be
denied him.
Finally, I can think of nothing more degrading to the human
person than the balance which the court struck today in favor of death and
against life. It is but another triumph for the forces of secular humanism
(modern paganism) which have now succeeded in imposing their anti-life
principles at both ends of life's spectrum. Pro dolor.
Lynch, J.
(dissenting in part).
This case turns on a fine balancing of competing
interests. I disagree with the majority and believe that that balance tips in
favor of continuing to provide nutrition and hydration to Paul Brophy.
Although I indorse [***53] the reasoning and careful
scholarship of much of the majority opinion, and would reaffirm
Superintendent of Belchertown State School v.
Saikewicz, 373 Mass. 728 (1977), today's decision goes
beyond that pronouncement. My principal objection is that the State's interest
in the preservation of life has not been given appropriate weight. In addition,
unlike Saikewicz, the majority nullify, if only in part, the law
against suicide.
The interest in the preservation of life consists of at
least two related concerns. First, the State has an interest in preserving the
life of the particular patient. Second, the State has a closely related interest
in preserving the sanctity of all human life. n1 Matter of Conroy, 98
N.J. 321, 349 [**641] (1985). But see [*444] Cantor,
Quinlan, Privacy, and the Handling of Incompetent Dying Patients, 30
Rutgers L. Rev. 243, 249 (1977). Those two concerns manifest themselves in a
variety of ways, and represent traditional values in the law.
- -
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n1 Maintaining the sanctity of life may well be the reason society
invests the State with sovereign authority. As Hobbes relates in Leviathan, the
life of man in the state of nature is "solitary, poor, nasty, brutish, and
short" and is characterized by a "war of every man against every man." The
social contract invests the sovereign with authority to end that war. Hobbes,
Leviathan, in 23 Great Books of the Western World 85, 100-101 (R. Hutchins ed.
1952). Even in John Locke's less hostile view of the state of nature, the
formation of the State is largely justified on the ground that it affords
protection for property. Locke, Concerning Civil Government, Second Essay, in 35
Great Books of the Western World 53 (R. Hutchins ed. 1952). Locke believed that
a person's property right in his or her body is foremost among property rights.
Id. at 30.
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Footnotes- - - - - - - - - - - - - - - - - [***54]
The
majority recognize that the first concern is implicated in this case but fail to
acknowledge significant concern for preserving the sanctity of all human life.
The withdrawal of the provision of food and water results in particularly
difficult, painful and gruesome death; n2 the cause of death would not be some
underlying physical disability like kidney failure or the withdrawal of some
highly invasive medical treatment, but the unnatural cessation of feeding and
hydration which, like breathing, are part of the responsibilities we assume
toward our bodies routinely. Such a process would not be very far from
euthanasia, and the natural question is: Why not use more humane methods of
euthanasia if that is what we indorse? The State has an interest in maintaining
the public integrity of the symbols of life -- apparent euthanasia, and an
apparently painful and difficult method of euthanasia, is contrary to that
interest.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - -
- - - - - - - - - - - -
n2 Removal of the G-tube would likely create
various effects from the lack of hydration and nutrition, leading ultimately to
death. Brophy's mouth would dry out and become caked or coated with thick
material. His lips would become parched and cracked. His tongue would swell, and
might crack. His eyes would recede back into their orbits and his cheeks would
become hollow. The lining of his nose might crack and cause his nose to bleed.
His skin would hang loose on his body and become dry and scaly. His urine would
become highly concentrated, leading to burning of the bladder. The lining of his
stomach would dry out and he would experience dry heaves and vomiting. His body
temperature would become very high. His brain cells would dry out, causing
convulsions. His respiratory tract would dry out, and the thick secretions that
would result could plug his lungs and cause death. At some point within five
days to three weeks his major organs, including his lungs, heart, and brain,
would give out and he would die. The judge found that death by dehydration is
extremely painful and uncomfortable for a human being. The judge could not rule
out the possibility that Paul Brophy could experience pain in such a scenario.
Paul Brophy's attending physician described death by dehydration as cruel and
violent.
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- - - - - - - - - - - - [***55]
[*445] Moreover,
until this case, it was clear that the State's interest in life was to be
balanced against the individual's right to privacy and bodily integrity. No case
in this Commonwealth has ever construed the right to privacy and bodily
integrity as more than the right to avoid invasive treatments and certain other
bodily invasions under appropriate conditions. Today, however, the majority
essentially equate the right to privacy and bodily integrity with a right to
choose or refuse all bodily invasions. Thus, if an individual's choice would be
to refuse treatment or care, it is not important that that treatment or care is
minimally invasive (except to the extent that it factors into the individual's
choice). The majority now go well beyond Saikewicz in following the
Supreme Court of New Jersey's pronouncement that the primary focus should be on
the patient's choices and not on the type of treatment involved. After today's
decision, the finding of a substituted judgment essentially will be conclusive
in the "balancing" process. Such a rule essentially has been adopted by both the
California and New Jersey courts. See Bouvia v. Superior
Court, 179 Cal. [***56] App. 3d 1127, 1137-1138 (1986);
Barber v. Superior Court, 147 Cal. App. 3d
1006, 1019 (1983); Matter of Conroy, supra at 355.
In upholding
a substituted judgment decision to refuse nutrition and hydration, this court
and the California and New Jersey courts have not been willing to take the final
step and rule directly that the right to privacy and bodily integrity entails a
(limited) [**642] right to die. Cf. Bouvia v. Superior
Court, supra at 1146-1148 (Compton, J., concurring). Massachusetts law has
not heretofore acknowledged a right to die emanating from the right to privacy,
but now, in essence, it does. Under Saikewicz and its progeny, the
invasiveness of the procedure sought to be terminated was an important factor to
be considered in assessing the strength of the State's interest in preserving
life against the individual's rights. For all intents and purposes, this element
has been eliminated and the Saikewicz "balancing test" is all but
chimerical once it has been discerned what the individual's choice would be. It
is not enough to retreat behind the argument that discerning degrees of
invasiveness would be difficult.
[*446] In
[***57] Saikewicz, supra at 738, 743-744, we did speak with
approval of the medical ethics distinction made between extraordinary and
ordinary care -- a distinction we perceived as having been recognized as extant
in the medical community by the New Jersey Supreme Court in Matter of
Quinlan, supra at 47. The majority now join those who are critical of this
distinction. The validity of the criticisms aside, they are not telling against
an evaluation of procedures according to their invasiveness. Here it is clear
that the continued use of a G-tube presents few risks, no surgery, no pain or
discomfort, and is minimally invasive; it is hardly more invasive than letting
air into the room so that a patient can breathe. While the degree of
invasiveness involved in a particular medical regimen may present issues of
difficult line-drawing, this is not such a case.
Second, it appears that
the majority have refused to overrule Saikewicz directly and to rule in
favor of a constitutional right to die, so as to avoid the obvious conflict with
the law against suicide. The State has an interest in the prevention of suicide.
The underlying State interest in this area is the prevention of
[***58] irrational self-destruction. Saikewicz, supra at
743 n.11. We have stated that an adult's refusing medical treatment is not
necessarily suicide because "(1) in refusing treatment the patient may not have
the specific intent to die, and (2) even if he did, to the extent that the cause
of death was from natural causes the patient did not set the death producing
agent in motion with the intent of causing his own death." Id. Here,
Brophy is not terminally ill, and death is not imminent, and the judge
specifically found that Paul Brophy's decision would be to terminate his life by
declining food and water. The judge also found that "Brophy's decision, if he
were competent to make it, would be primarily based upon the present quality of
life possible for him, and would not be based upon the burdens imposed upon him
by receiving food and water through a G-tube, which burdens are relatively
minimal . . . ." Where treatment is burdensome and invasive, no such specific
intent is normally at issue because, whether or not the patient seeks to die,
the patient primarily seeks to end invasive or burdensome [*447]
treatment. n3 There is no question that the intent here is to end a
[***59] life that is "over." Moreover, death here would not be from
natural causes, i.e., causes he or his agents did not set in motion, but
instead, the death producing agent would be set in motion by a volitional act
with the intent to cause death. n4
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n3 This is not a case
where a patient subject to burdensome or invasive treatment seeks to end that
treatment and seeks to die. Ordinarily, mere knowledge that death will
invariably result from the withdrawal of treatment is not sufficient to show a
specific intent to die.
n4 Contrast the situation of a person on a
respirator or dialysis machine, whose failed respiratory system or kidneys is
the problem that will cause death.
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- -End Footnotes- - - - - - - - - - - - - - - - -
Suicide is primarily a
crime of commission, but can, and indeed must, also be conceived as an act of
omission at times. See In re Caulk, 125 N.H. 226, 228, 231-232 (1984)
(suicide can be committed by starvation [or dehydration]). If nutrition and
hydration are terminated, it is not the illness which causes the death but the
decision [***60] (and act in accordance [**643]
therewith) that the illness makes life not worth living. There is no rational
distinction between suicide by deprivation of hydration or nutrition in or out
of a medical setting n5 -- both are suicide.
- - - - - - - - - -
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n5 Query: Do
the majority recognize a right to die via starvation-dehydration if done at
home, or elsewhere outside of a medical facility?
- - - - - - - -
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The
State therefore has an interest in preventing suicide in this case that is
greater than that in any previous case which has been before this court. The
majority are apparently willing to recognize a limited right to commit suicide
when an individual chooses to forgo life sustaining nutrition and hydration in a
medical setting. The law against suicide predates our Constitution, and we
should not nullify it without express legislation to this effect.
Commonwealth v. Mink, 123 Mass. 422, 425-429 (1877).
A
delicate case such as this calls for doctrinal exaction and for judicial
restraint and caution. In an admirable effort to [***61] affirm
individual authonomy and to authorize individuals to [*448] protect
their humanity from the cruelty of fate, the majority have overlooked the limits
of our power to accomplish such goals. A substituted judgment standard is our
best legal tool to divine individual intent and to protect autonomous choice.
But it would be an error of great magnitude to conflate a substituted judgment
with an actual judgment. Such a mistake is a far greater blow against individual
autonomy than it might at first seem. It is paternalism masquerading as the mere
ratification of autonomous choice. Here, where Paul Brophy did not specifically
advert to the choice which the majority now make for him, we should not be so
quick to overlook the State's interests in protecting human life and the law
against suicide. After all, those interests are handed to us from a tradition
which seeks to protect human autonomy. In such a close case we should be
cautious, and the course of caution here lies in the direction of preserving
life.
O'Connor, J. (concurring in part and dissenting in part).
I agree that the law of the Commonwealth does not require hospitals or
medical professionals to take measures [***62] contrary to their
ethical views concerning their duty to their patients. Therefore, I join the
court in affirming that part of the judgment that pertains to the hospital. I
sharply disagree, however, that the court should honor the choice, attributed to
Brophy by a process of substituted judgment, that his G-tube be removed or
clamped. Therefore, I do not join the court in so far as the court sets aside
the injunction prohibiting the guardian from authorizing a facility to remove or
clamp the tube. Furthermore, I do not join the court in ordering a new judgment
designed to effectuate Brophy's supposed wishes. I would affirm the judgment
below in its entirety.
The court's statement of the trial judge's
findings concerning the choice Brophy would have made, were he competent, "to
decline the provision of food and water and to terminate his life,"
ante at 427, is critically incomplete. The judge found (findings nos.
97 and 113) that Brophy's choice "would be to decline the provision of food and
water, and thereby terminate [*449] his life" (emphasis
added). The judge deliberately used the word "thereby" to express his finding
that Brophy's primary purpose in declining [***63] the provision of
food and water would have been the termination of his life, entirely apart from
any concern about the treatment's being intrusive. That fact is clear from the
judge's further finding, also omitted from the court's opinion, that "Brophy's
decision, if he were competent to make it, would be primarily based upon the
present quality of life possible for him, and would not be based upon the
burdens imposed upon him by receiving food and water through a G tube, which
burdens are relatively minimal, inasmuch as the aforesaid treatment is neither
painful nor invasive." (Finding no. 114.) Nowhere does the [**644]
court acknowledge that the judge found on abundant evidence that Brophy would
have chosen to decline food and water via the G-tube primarily because he wants
to die, and not because of a lack of confidence that that procedure would be
effective in prolonging his life, or because the procedure would be humiliating,
painful, or otherwise burdensome. The omitted finding is crucial to an
understanding of this case.
Unlike other cases, typified by
Superintendent of Belchertown State School v. Saikewicz, 373
Mass. 728 (1977), and Matter of Conroy, 98 N.J. [***64] 321
(1985), this case does not involve an individual's substituted choice to live
for as long as possible without seriously burdensome treatment rather than to
undergo such treatment in order to prolong life for a brief and uncertain time.
Instead, this case raises for the first time in this Commonwealth the question
whether an individual has a legal right to choose to die, and to enlist the
assistance of others to effectuate that choice on the ground that, irrespective
of the nature of available life prolonging treatment, life in any event is not
worth living and its continuation is intolerable.
The court frames the
issue as "whether the substituted judgment of a person in a persistent
vegetative state that the artificial maintenance of his nutrition and hydration
be discontinued shall be honored." Ante at 419. The court's statement
of the issue, like its statement of the facts, fails to reflect the judge's
finding, binding on this court, that Brophy's choice would not
[*450] be to avoid treatment he would consider burdensome or
ineffective to prolong his life, but, instead, would be to die. Sound analysis
requires a precise statement of the issue. In light of the judge's
[***65] findings, the precise issue in this case is whether the
court shall honor the substituted judgment of a person in a persistent
vegetative state that the artificial, effective, and non-burdensome
maintenance of his nutrition and hydration be discontinued by others in
order to bring about his early death. Suicide is the termination of one's
own life by act or omission with the specific intention to do so. Euthanasia is
the termination of another's life by act or omission, with the specific
intention to do so, in order to eliminate suffering. The court must consider
whether on the facts of this case legal rights to commit suicide and euthanasia
should be recognized. Such rights should never be recognized.
Surely, if
one has a right to commit suicide, others have a right to assist him in doing
so. The fundamental question, then, is whether the court should recognize a
right to commit suicide. This court's explicit recognition of an individual's
right to be free of nonconsensual invasion of his bodily integrity in
Harnish v. Children's Hosp. Medical Center, 387 Mass. 152
(1982), in no sense implied recognition of a right to commit suicide. Nor was
such a right recognized [***66] by this court in Saikewicz
or by the Supreme Court of New Jersey in Matter of Conroy. In
Saikewicz, supra at 753-755, this court held that Saikewicz's right of
self-determination was superior to the State's interest in the preservation of
human life, but in that case there was no suggestion that, were he competent,
Saikewicz would have refused treatment specifically for the purpose of ending
his life. In light of the facts of that case, this court noted that "[t]he
interest in protecting against suicide seems to require little if any
discussion." Id. at 743 n.11. The court's decision was not a
recognition of a right to die, but rather was a recognition of Saikewicz's right
to choose not to undergo treatment that, due to his own special characteristics
and the nature of the treatment, would impose "heavy physical and emotional
burdens . . . to effect a brief and uncertain delay in the natural process of
death." Id. at 744. This court rested its [*451] conclusion
squarely on the uncertainty that the treatment would be effective to prolong
Saikewicz's life, and on the "pain and disorientation [that would be]
precipitated by the chemotherapy treatment." [***67] Id. at
754. This court firmly rejected the idea that withholding treatment would
[**645] be justified on the ground that the quality of Saikewicz's
life was unsatisfactory. Id.
The facts in Matter of Conroy,
supra, parallel the facts in this case, with one major distinction. In
Matter of Conroy, there was no finding, as there is here, that
the ward's choice would be based primarily on the quality of life possible for
the ward. As this court observes, ante at 435, "[i]n that case the
court would have refused to force a patient who had less than a year to live to
endure the pain of a nasogastric tube used to supply nutrition and hydration."
Most important are the court's observations in Conroy, at 351, that
"people who refuse life-sustaining medical treatment may not harbor a specific
intent to die, Saikewicz . . . at 743 n.11 . . .; rather, they may
fervently wish to live, but to do so free of unwanted medical technology,
surgery, or drugs, and without protracted suffering. . . . Recognizing the right
of a terminally ill person to reject medical treatment respects that person's
intent, not to die, but to suspend medical intervention at a point consonant
[***68] with the 'individual's view respecting a personally
preferred manner of concluding life.' Note, 'The Tragic Choice: Termination of
Care for Patients in a Permanent Vegetative State,' 51 N.Y.U.L. Rev. 285, 310
(1976). The difference is between self-infliction or self-destruction and
self-determination. See Byrn, 'Compulsory Lifesaving Treatment for the Competent
Adult,' 44 Fordham L. Rev. 1, 16-23 (1975)."
The court states here,
ante at 433, that "the State's interest in preserving life is very high
when 'human life [can] be saved where the affliction is curable.' Saikewicz,
supra at 742. That interest wanes when the underlying affliction is
incurable and would 'soon cause death regardless of any medical treatment.'
Commissioner of Correction v. Myers, supra at 262.
Saikewicz, supra." It is true, of course, that if the proposed
treatment will not be effective to prolong the patient's life, the State's
concern for the preservation of life is not advanced by [*452] its
insistence on the treatment. The language quoted from Saikewicz, in
context, says no more than that. Clearly, the court in Saikewicz did
not suggest that the State lacks a legitimate [***69] interest in
effective means being taken to prolong the life of one who is afflicted with a
disease or disability, or that that interest depends on whether the disease is
curable or the disability is correctable. Such a suggestion would have
contradicted the court's firm rejection of a rule that "equates the value of
life with any measure of the quality of life." Id. at 754.
In
the instant case, the court states: "[W]e make no judgment based on our own view
of the value of Brophy's life, since we do not approve of an analysis of State
interests which focuses on Brophy's quality of life. . . . It is antithetical to
our scheme of ordered liberty and to our respect for the autonomy of the
individual for the State to make decisions regarding the individual's quality of
life. It is for the patient to decide such issues." Ante at 434. The
court's conclusion that Brophy's right to discontinue food and water is superior
to the State's interest in preserving human life, ante at 439, appears,
then, to be premised on the principle that everyone has an absolute right to
commit suicide regardless of any assessment by the court of the quality of the
life to be extinguished. If, [***70] indeed, that is a correct
statement of the court's reasoning, it necessarily follows that the young as
well as the old, the healthy as well as the sick, and the firm as well as the
infirm, without exception, have the right to commit suicide, and that others
have the right to participate in that act. Such a principle surely departs
radically from the policy and tradition of this Commonwealth heretofore and
should not be acceptable to a civilized society.
The court makes its own
assessment of Brophy's condition as "helpless." Ante at 434. It may be,
therefore, that the court does not rely exclusively on Brophy's own evaluation
of the quality of his life, and that the court's evaluation is indeed a relevant
factor. If that is the case, then the [**646] rule for the future is
that the court will determine on a case by case basis whether the quality of
life available to the individual who chooses to die justifies a State interest
in protecting that life. Whether the [*453] court is establishing an
absolute legal right to commit suicide or a right that depends on judicial
measurement of the quality of the life involved, neither principle is consistent
with this nation's [***71] traditional and fitting reverence for
human life.
Even in cases involving severe and enduring illness,
disability and "helplessness," society's focus must be on life, not death, with
dignity. By its very nature, every human life, without reference to its
condition, has a value that no one rightfully can deny or measure. Recognition
of that truth is the cornerstone on which American law is built. Society's
acceptance of that fundamental principle explains why, from time immemorial,
society through law has extended its protection to all, including, especially,
its weakest and most vulnerable members. The court's implicit, if not explicit,
declaration that not every human life has sufficient value to be worthy of the
State's protection denies the dignity of all human life, and undermines the very
principle on which American law is constructed. I would affirm the judgment
below.
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