The legal column: The Wendland case: on families and fantasies

Spring 2003 Vol. 10, Issue 2

By Lawrence J. Nelson, PhD, JD

Department of Philosophy
Faculty Scholar, Markkula Center for Applied Ethics
Santa Clara University, CA

In the fall of 1993, an auto accident left Robert Wendland comatose for well over a year. Hoping for his recovery despite the odds, his wife, Rose, wanted him to receive all available treatment. Some 16 months after the accident, Robert regained consciousness, but was left profoundly and permanently physically and mentally disabled. Despite receiving months of therapy, Robert remained paralyzed on his right side; he was aphasic and could not meaningfully communicate even with assistive devices. His wife and children never saw that he recognized them. He could not perform any activities of daily living; he could not swallow and so needed a surgically implanted tube to get food and water. Nevertheless, he could at times follow some simple commands but only with much coaching and then only inconsistently. He could at one point operate an electric wheelchair on his own, although he could not avoid obstacles in his path or reverse course if he bumped into a wall. Clearly, Robert lacked the mental capacity to make contemporaneous decisions about his life and future.

Almost two years after the accident, Rose, whom the attending physicians had always turned to for consent for Robert's continued treatment, decided to stop the administration of food and fluid to him through the feeding tube. This decision came after Robert had pulled this tube out of his body four times and his physicians had told her he would never get any better. Based on previous conversations with him regarding such matters and his values, she and her children (as well as his brother with whom he was close) were convinced that Robert would not want to live under these circumstances and would refuse to be kept alive by medical treatment.

Her decision was challenged in court by Robert's estranged mother ("estranged" because the court heard uncontradicted sworn testimony that his mother had not set foot in Robert's and Rose's home in the 10 years prior to the accident and that their children did not recognize her as their grandmother). The trial judge ruled that Rose could not legally stop his tube feedings. Ultimately, the California Supreme Court ruled that Rose lacked the legal authority to refuse tube feedings on her husband's behalf that would have allowed him to die. ¹ Had Robert used a durable power of attorney for health care to give Rose his medical decision-making authority or if had he left formal, written instructions about future treatment or about who should make medical decisions on his behalf, the Court stated (albeit somewhat grudgingly) that his choice should have been respected.

In the absence of a durable power of attorney or another formal document, the Court concluded that the incompetent patient's constitutionally protected right to life and right to privacy require that his surrogate prove by "clear and convincing evidence" that either the patient previously had refused the treatment in question under the exact circumstances he now is in or that stopping treatment is in his best interest. (For reasons very hard to understand given that everyone must have the same constitutional rights, the Court exempted conscious, terminally ill incompetent patients and permanently unconscious patients from the reach of its ruling.) As Rose had not produced evidence sufficient to meet either of these standards, the Court ruled that she could not refuse tube feeding. Consequently, the Court required that all life-sustaining treatment (including, of course, the tube feeding) must continue despite the sincere conviction of Robert's closest family members that he would not want such treatment or to live under the heavy burdens his injuries imposed on him. The extent of this burden was confirmed by the two independent medical experts hired by Robert's own lawyer: both found that he evinced experience of nothing other than frustration, pain and discomfort, irritability, aggressiveness towards others, and unhappiness.

Close family members will find the Court's standard of proof nearly impossible to meet. The patient must have expressed his or her wishes very precisely in order for the family to be able to utilize them. The family must be able to show that its incompetent relative "would desire to have his life-sustaining medical treatment terminated under the circumstances in which he now finds himself" (emphasis added). As none of us has a crystal ball, it is purely a fantasy to think that the typical person will be able to predict the future and express his wishes so precisely.

One lesson from Wendland is very familiar: every adult ought to formally designate a person who will have clear authority to act as her surrogate to make medical decisions on her behalf when she cannot do so herself. But despite excellent reasons to create a durable power of attorney or another legally recognized form of advance directive, the overwhelming majority of Americans have not done so. Despite serious efforts to educate the public and promote advance directives, only some 10 to15 percent of Americans have one - and many of these cannot be found at the crucial time or are found to be legally invalid. Why this is true is nowhere as important than it simply is true - and will almost surely continue to be so into the future.

Most Americans count on their close family members being able to make medical decisions for them if they cannot do so themselves, but Wendland ignores this reasonable and common expectation. Close family members should presumptively be the ones who decide when it is right to forgo treatment of their incompetent relative. They treat the patient as an individual person because they know her the best, care for her, and have her best interests at heart. The Latin root of "surrogate," sur-rogare , can be translated as "to ask near." When we cannot ask the patient herself, we ask someone as close to her as possible.

Although many disability rights advocates urged the Court to be highly suspicious of families who choose to let their loved ones die, close family should not be stripped of medical decision-making authority for their incompetent relatives. To be sure, family members will sometimes act selfishly, precipitously, or otherwise make ethically objectionable decisions for their relatives, but this is likely to be quite rare. In such situations, we should be able to count on the physicians, nurses, and health care institutions who are committed to patient well-being to serve as a check on rogue relations who make medical decisions clearly contrary to the patient's wishes or best interests. In the last analysis, no stranger - be she judge, physician, disability activist or lawyer - is at all likely to be better situated as a surrogate decision maker, choosing in consultation with a conscientious physician, than a close family member who has a demonstrated personal connection to the patient. Physicians have been doing exactly this for centuries and have created one ethical tradition that should not change.

Footnotes

¹ Conservatorship of Wendland, 26 Cal 4th 519, 28 P 3rd 151 (2002).

in collaboration with
Dartmouth-Hitchcock Medical Center

The opinions expressed in the journal, Lahey Clinic Medical Ethics,
belong to the individual contributors and do not represent the institutional position
of Lahey Clinic on any subject matters discussed.