De Paul University
Class: Law & Values
Teacher: Jack Morn, JD Spring 1991
Facts:
In re Estate of Longeway, (Dorothy M.) Ill SupCourt, No. 67318, 11/13/89.
Mrs. Longeway was a 78-year-old, Naperville nursing home resident (The Community Convalescent Center). Longeway’s daughter, Bonnie Keiner, asked the court to allow tube feedings to be discontinued after her mother had several strokes. Longeway had been unconscious for 2 years and could not chew or swallow. She was not brain dead, nor comatose, but her prognosis was very poor. Mrs. Longeway did not have a Living Will or Power of Attorney for health care.
Issue:
Whether the guardian of an incompetent, seriously ill patient may exercise a right to refuse artificial nutrition and hydration. And if so, how can this right be exercised? Whether a patient has a right to refuse this type of medical treatment.
Law:
The court found the right to refuse life-sustaining treatment could be found in the state’s common law and in the Illinois Probate Act (Section 11a-17).
Reasoning:
Other states that have allowed the removal of sustenance have labeled them as medical treatment (differing from spoon or bottle-feeding). Termination of these “intrusive” procedures will not be the cause of the patient’s death; their death was caused by the disease that left them unable to swallow or chew. The court said that since they had no guidance from the U.S. Supreme Court, (Cruzan came 3 weeks later), they decided not to address the federal right to privacy, nor the privacy provision of their state constitution. The justices claim that a patient, under common state law, can refuse medical treatment, and under the right conditions nutrition & hydration. The Probate Act gives a guardian the right to refuse artificial sustenance on behalf of the ward. The agent may terminate sustenance if the patient had previously issued a power of attorney, under the Powers of Attorney Health Care Law. In the majority opinion by Justice H. Ryan, the court said, “Food and water are emotionally symbolic in that food and water are basic necessities of life, and the feeding of those who are unable to feed themselves is the most fundamental of all human relationships”. For patients who are not able to make decisions, tube feedings can be discontinued by a guardian of a terminally ill patient. They defined terminally ill as, “an incurable and irreversible condition, which is such that death is imminent, and the application of death-delaying procedures serves only to delay the dying process.”
Holding:
In a 4-2 decision, the justices said a guardian may exercise the right to refuse sustenance on behalf of an incompetent ward if certain conditions are followed:
1. The incompetent person must be considered terminally ill, in an irreversible coma or in a persistent vegetative state.
2. In addition to the attending physician, 2 other physicians must agree on the patient’s diagnosis.
Four state interests must then be considered:
1. The preservation of life
2. Protection of innocent 3rd parties
3. Prevention of suicide
4. Maintenance of the ethical integrity of the medical profession.
The next step is the determination of the patient’s wishes. The courts have used one of 2 theories:
Best interests – the surrogate decides which medical procedures are in the patient’s best interest. (The problem here is that one person is deciding on the quality of life for another which could end up undermining the very reason for self-determination and inviability of the person on which the right to refuse was intended). The court said cases must use:
Substituted judgment – the surrogate attempts to establish the decision that the patient would make if he were able, by either expressed intention or what seems to fit the patient’s value system.
Courts must use the clear & convincing evidence standard.
The final step is in determining the court’s role. They said that the majority don’t really need a court, but to withdraw sustenance they think it’s a good idea because:
Illinois has a strong public policy preserving life’s sanctity. The key element in the decision to refuse is the determination of the patient’s intent, requiring clear and convincing evidence. They also hope to guard
against the possibility of greed as a motive.
Dissent:
The right to refuse is dependent on and rooted in the patient’s capacity for making informed decisions which the incompetent patient cannot do. Justice J. Ward. The issue should be studied fully by the legislature. Justice J. Clark.
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Brief
Facts:
In re Estate of Greenspan, Ill SupCourt, No 67903, 7-9-90.
-The wife, 2 daughters, an employee of and the rabbi of a 76-year-old man, who had been in a chronic vegetative state for 5 years, without reasonable hope to recover, sought to remove sustenance; they felt he would not have wanted to be maintained in such a way. There was no living will or health care power of attorney.
-The public guardian’s petition (Cook County) was granted by the circuit court to appoint the patient’s plenary guardian. The public guardian then tried to discontinue the life support systems. A court-appointed guardian ad litem recommended that the public guardian’s petition be granted, but the trial judge said that the Living Will Act prevents withdrawal of sustenance if it would lead to death from starvation rather than the terminal disease.
-The guardian ad litem and the public guardian both sought Supreme Court intervention. The Americans United For Life Legal Defense Fund (AUL) presented opposing arguments. They claim that the public guardian was not acting in the best interests of the patient because
stopping the feeding would result in death and how could that be in his best interest?
Issue:
AUL asked the court whether a guardian has the authority to order such removal from an incompetent. But instead of ordering the withdrawal of sustenance on the basis of any authority of his own, the public guardian tried to get the court to order withdrawal as the patient’s surrogate. The question initially stated by the AUL was whether that would be in conflict with the duties of the public guardian.
In Longeway, artificial nutrition, according to the Illinois Living Will Act, was death-delaying treatment (even though the act prevents withdrawal if such withdrawal would result in death “solely” from the withdrawal
instead of the condition). Artificial nutrition and hydration are considered medical treatment under the Powers of Attorney for Health Care Law and may be discontinued. The Act nor the Law apply to this person because there is no living will or health care power of attorney. The fact that the statute’s referring to nutritional sustenance as medical treatment and not just as nourishment instructs the court on the issues here.
Law:
Illinois Living Will Act.
Powers of Attorney for Health Care Law.
The 1975 Probate Act and common law.
Reasoning:
The justices made analogies with Cruzan and Longeway’s decisions. In Cruzan, it was held that guardians lacked the authority to stop medical treatment.
As in Longeway, when the patient can’t chew or swallow because of a terminal illness, the ultimate cause of death is the disease, not the withdrawal of feedings.
The Living Will Act doesn’t prevent the public guardian from having the feedings withdrawn. It does not apply to a patient without a living will. The Powers of Attorney for Health Care Law led to a public policy holding that discontinuance of tube feedings is allowable through a health care agency. If the person under the health care power has a living will, it will be mute, so long as the agent under power is able to act. The legislature recently amended the Living Will Act to say that a qualified patient, (one who is terminally and with a living will) should not be deprived of nutritional sustenance if that alone would be the cause of death.
Holding:
Under section 2(h) of The Living Will Act, a terminal condition is one in which (1) death is imminent and (2) death-delaying treatments just prolong the dying process. For the purposes of defining terminal illness,
“imminent death” must be judged as if the death-delaying treatments were absent; death would be imminent without the tube feedings. They allowed the feeding tube to be discontinued. Justice J. Stamos.
Dissent:
The majority ignored the requirement that the incompetent patient must be terminally ill according to the Living Will Act which allows their withdrawal only when they are futile. They also disagree that the cause of death would be from the underlying disease. Justices Ward and J.J. Calvo. , (Dorothy M.) Ill SupCourt, No. 67318, 11/13/89. Mrs. Longeway was a 78-year-old, Naperville nursing home resident (The Community Convalescent Center).
Longeway’s daughter, Bonnie Keiner, asked the court to allow tube feedings to be discontinued after her mother had several strokes. Longeway had been unconscious for 2 years and could not chew or swallow. She was not brain dead, nor comatose, but her prognosis was very poor. Mrs. Longeway did not have a Living Will or Power of Attorney for health care.
Issue:
Whether the guardian of an incompetent, seriously ill patient may exercise a right to refuse artificial nutrition and hydration. And if so, how can this right be exercised?
Whether a patient has a right to refuse this type of Medical treatment.
Law:
The court found the right to refuse life-sustaining treatment could be found in the state’s common law and in the Illinois Probate Act (Section 11a-17).
Reasoning:
Other states that have allowed the removal of sustenance have labeled them as medical treatment (differing from spoon or bottle-feeding). Termination of these “intrusive” procedures will not be the cause of the patient’s death; their death was caused by the disease that left them unable to swallow or chew. The court said that since they had no guidance from the U.S. Supreme Court, (Cruzan came 3 weeks later), they decided not to address the federal right to privacy, nor the privacy provision of their state constitution. The justices claim that a patient, under common state law, can refuse medical treatment, and under the right condition’s nutrition & hydration. The Probate Act gives a guardian the right to refuse artificial sustenance on behalf of the ward. The agent may terminate sustenance if the patient had previously issued a power of attorney, under the Powers of Attorney Health Care Law. In the majority opinion by Justice H. Ryan, the court said, “Food and water are emotionally symbolic in that food and water are basic necessities of life, and the feeding of those who are unable to feed themselves is the most fundamental of all human relationships”. For patients who are not able to make decisions, tube feedings can be discontinued by a guardian of a terminally ill patient. They defined terminally ill as, “an incurable and irreversible condition, which is such that death is imminent and the application of death-delaying procedures serves only to delay the dying process.”
Holding:
In a 4-2 decision, the justices said a guardian may exercise the right to
refuse sustenance on behalf of an incompetent ward if certain conditions are followed:
1. The incompetent person must be considered terminally ill, in an irreversible coma or in a persistent vegetative state.
2. In addition to the attending physician, 2 other physicians must agree on the patient’s diagnosis.
Four state interests must then be considered:
1. The preservation of life
2. Protection of innocent 3rd parties
3. Prevention of suicide
4. Maintenance of the ethical integrity of the medical profession.
The next step is the determination of the patient’s wishes. The courts have used one of 2 theories:
Best interests – the surrogate decides which medical procedures are in the patient’s best interest. (The problem here is that one person is deciding on the quality of life for another which could end up undermining the very reason for self-determination and inviability of the person on which the right to refuse was intended). The court said cases must use:
Substituted judgment – the surrogate attempts to establish the decision that the patient would make if he were able, by either expressed intention or what seems to fit the patient’s value system. Courts must use the clear & convincing evidence standard.
The final step is in determining the court’s role. They said that the majority don’t really need a court, but to withdraw sustenance they think it’s a good idea because:
Illinois has a strong public policy preserving life’s sanctity. The key element in the decision to refuse is the determination of the patient’s intent, requiring clear and convincing evidence. They also hope to guard against the possibility of greed as a motive.
Dissent:
The right to refuse is dependent on and rooted in the patient’s capacity for making informed decisions which an incompetent patient cannot do. Justice J. Ward. The issue should be studied fully by the legislature. Justice J. Clark.
———————————————————————————————–
Brief
Facts:
In re Estate of Greenspan, Ill SupCourt, No 67903, 7-9-90.
-The wife, 2 daughters, an employee of and the rabbi of a 76-year-old man, who had been in a chronic vegetative state for 5 years, without reasonable hope to recover, sought to remove sustenance; they felt he would not have wanted to be maintained in such a way. There was no living will or health care power of attorney.
-The public guardian’s petition (Cook County) was granted by the circuit court to appoint the patient’s plenary guardian. The public guardian then tried to discontinue the life support systems. A court-appointed guardian ad litem recommended that the public guardian’s petition be granted, but the trial judge said that the Living Will Act prevents withdrawal of sustenance if it would lead to death from starvation rather than the terminal disease.
-The guardian ad litem and the public guardian both sought Supreme Court intervention. The Americans United For Life Legal Defense Fund (AUL) presented opposing arguments. They claim that the public guardian was not acting in the best interests of the patient because stopping the feeding would result in death and how could that be in his best interest?
Issue:
AUL asked the court whether a guardian has the authority to order such removal from an incompetent. But instead of ordering the withdrawal of sustenance on the basis of any authority of his own, the public guardian tried to get the court to order withdrawal as the patient’s surrogate. The question initially stated by the AUL was whether that would be in conflict with the duties of the public guardian.
In Longeway, artificial nutrition, according to the Illinois Living Will Act, was death-delaying treatment (even though the act prevents withdrawal if such withdrawal would result in death “solely” from the withdrawal instead of the condition). Artificial nutrition and hydration are considered medical treatment under the Powers of Attorney for Health Care Law and may be discontinued. The Act nor the Law apply to this person because there is no living will or health care power of attorney. The fact that the statute’s referring to nutritional sustenance as medical treatment and not just as nourishment instructs the court on the issues here.
Law:
Illinois Living Will Act.
Powers of Attorney for Health Care Law.
The 1975 Probate Act and common law.
Reasoning:
The justices made analogies with Cruzan and Longeway’s decisions. In Cruzan, it was held that guardians lacked the authority to stop medical treatment.
As in Longeway, when the patient can’t chew or swallow because of a terminal illness, the ultimate cause of death is the disease, not withdrawal of feedings.
The Living Will Act doesn’t prevent the public guardian from having the feedings withdrawn. It does not apply to a patient without a living will.
The Powers of Attorney for Health Care Law led to a public policy holding that discontinuance of tube feedings is allowable through a health care agency. If the person under the health care power has a living will, it will be mute, so long as the agent under power is able to act. The legislature recently amended the Living Will Act to say that a qualified patient, (one who is terminally and with a living will) should not be deprived of nutritional sustenance if that alone would be the cause of death.
Holding:
Under section 2(h) of The Living Will Act, a terminal condition is one in which (1) death is imminent and (2) death-delaying treatments just prolong the dying process. For the purposes of defining terminal illness, “imminent death” must be judged as if the death-delaying treatments were absent; death would be imminent without the tube feedings. They allowed the feeding tube to be discontinued. Justice J. Stamos.
Dissent:
The majority ignored the requirement that the incompetent patient must be terminally ill according to the Living Will Act which allows their withdrawal only when they are futile. They also disagree that the cause of death would be from the underlying disease. Justices Ward and J.J. Calvo.