Conservatorship of Wendland

• Decision Date: 09 August 2001
• Docket Number: No. S087265.,S087265.
• Citation: 110 Cal.Rptr.2d 412,28 P.3d 151,26 Cal.4th 519
• Court: California Supreme Court
• Parties: CONSERVATORSHIP OF the Person of Robert WENDLAND. Rose Wendland, as Conservator, etc., Petitioner and Appellant, v. Florence Wendland et al., Objectors and Respondents; Robert Wendland, Appellant.

110 Cal.Rptr.2d 412

26 Cal.4th 519

28 P.3d 151

CONSERVATORSHIP OF the Person of Robert WENDLAND.

Rose Wendland, as Conservator, etc., Petitioner and Appellant, v.Florence Wendland et al., Objectors and Respondents;

Robert Wendland, Appellant.

No. S087265.

Supreme Court of California.

August 9, 2001.

Rehearing Denied September 26, 2001.

Law Offices of Lawrence J. Nelson and Lawrence J. Nelson, San Francisco, for Petitioner and Appellant, Rose Wendland.

Law Offices of James M. Braden, James M. Braden, San Francisco, James T. Diamond, Jr., Oakland, and Pamela J. Sieux, San Francisco, for AppellantRobert Wendland.

Horvitz & Levy, David S. Ettinger and Jon B. Eisenberg, Encino, for Alliance

of Catholic Health Care, California Healthcare Association, California Medical Association, Catholic Healthcare West, Mercy Heathcare Sacramento, San Francisco Medical Society and 43 Individual Bioethicists, Margaret C. Crosby, San Francisco, for American Civil Liberties Union, Catherine I. Hanson and Alice P. Mead, San Francisco, for California Medical Association, Vicki Michel, Terri D. Keville, Stanton J. Price, Ila Rothschild and Cynthia Fruchtman, Los Angeles, for Los Angeles County Medical Association, Los Angeles County Bar Association Joint Committee on Biomedical Ethics and Los Angeles County Bar Association Bioethics Committee, as Amici Curiae, on behalf of all Appellants.

Brown, Hall, Shore & McKinley, Stockton, and Janie Hickok Siess, Lodi, for Objectors and Respondents.

Wesley J. Smith, Los Angeles, for Coalition of Concerned Medical Professionals, Rita L. Marker for Ethics and Advocacy Task Force of the Nursing Home Action Group, McKinley & Smith, Timothy M. Smith, Sacramento; and James Bopp, Jr., Terre Haute, IN, for the National Legal Center for the Medically Dependent & Disabled, Inc., Diane Coleman, Amy Hasbrouck, Somerville, MA; Public Interest Law Center of Philadelphia, Max Lapertosa, Los Angeles and Stephen F. Gold, Philadelphia, PA, for Not Dead Yet, Adapt, Self-Advocates Becoming Empowered, the ARC, Brain Injury Association, Inc., Center for Self-Determination, the Center on Human Policy at Syracuse University, the Disability Rights Center, the National Council on Independent Living, the National Spinal Cord Injury Association and TASH, as Amici Curiae, on behalf of Objectors and Respondents.

WERDEGAR, J.

In this casewe consider whether a conservator of the person may withhold artificial nutrition and hydration from a conscious conservatee who is not terminally ill, comatose, or in a persistent vegetative state, and who has not left formal instructions for health care or appointed an agent or surrogate for health care decisions.Interpreting Probate Code section 2355 in light of the relevant provisions of the California Constitution, we conclude a conservator may not withhold artificial nutrition and hydration from such a person absent clear and convincing evidence the conservator's decision is in accordance with either the conservatee's own wishes or best interest.¹

The trial court in the case before us, applying the clear and convincing evidence standard, found the evidence on both points insufficient and, thus, denied the conservator's request for authority to withhold artificial nutrition and hydration.The Court of Appeal, which believed the trial court was required to defer to the conservator's good faith decision, reversed.We reverse the decision of the Court of Appeal.

I.FACTS AND PROCEDURAL HISTORY

On September 29, 1993, Robert Wendland rolled his truck at high speed in a solo accident while driving under the influence of alcohol.The accident injured Robert's brain, leaving him conscious yet severely disabled, both mentally and physically, and dependent on artificial nutrition and hydration.²Two years later Rose Wendland, Robert's wife and conservator, proposed to direct his physician to remove his feeding tube and allow him to die.Florence Wendland and Rebekah Vinson(respectively Robert's mother and sister) objected to the conservator's decision.This proceeding arose under the provisions of the Probate Code authorizing courts to settle such disputes.(Prob.Code, §§ 2355,2359.)³

Following the accident, Robert remained in a coma, totally unresponsive, for several months.During this period Rose visited him daily, often with their children, and authorized treatment as necessary to maintain his health.

Robert eventually regained consciousness.His subsequent medical history is described in a comprehensive medical evaluation later submitted to the court.According to the report, Rose "first noticed signs of responsiveness sometime in late 1994 or early 1995 and alerted [Robert's] physicians and nursing staff."Intensive therapy followed.Robert's "cognitive responsiveness was observed to improve over a period of several months such that by late spring of 1995 the family and most of his health care providers agreed that he was inconsistently interacting with his environment.A video recording[⁴] of [Robert] in July 1995 demonstrated clear, though inconsistent, interaction with his environment in response to simple commands.At his highest level of function between February and July, 1995, Robert was able to do such things as throw and catch a ball, operate an electric wheelchair with assistance, turn pages, draw circles, draw an `R' and perform two-step commands."For example, "[h]e was able to respond appropriately to the command `close your eyes and open them when I say the number 3.'. . . He could choose a requested color block out of four color blocks.He could set the right peg in a pegboard.Augmented communication⁵ was met with inconsistent success.He remained unable to vocalize.Eye blinking was successfully used as a communication mode for a while, however no consistent method of communication was developed."

Despite improvements made in therapy, Robert remained severely disabled, both mentally and physically.⁶The same medical report summarized his continuing impairments as follows: "severe cognitive impairment that is not possible to fully appreciate due to the concurrent motor and communication impairments . . ."; "maladaptive behavior characterized by agitation, aggressiveness and non-compliance"; "severe paralysis on the right and moderate paralysis on the left"; "severely impaired communication, without compensatory augmentative communication system"; "severe swallowing dysfunction, dependent upon non-oral enteric tube feeding for nutrition and hydration"; "incontinence of bowel and bladder"; "moderate spasticity"; "mild to moderate contractures"; "general dysphoria"; "recurrent medical illnesses, including pneumonia, bladder infections, sinusitis"; and "dental issues."

After Robert regained consciousness and while he was undergoing therapy, Rose authorized surgery three times to replace dislodged feeding tubes.When physicians sought her permission a fourth time, she declined.She discussed the decision with her daughters and with Robert's brother Michael, all of whom believed that Robert would not have approved the procedure even if necessary to sustain his life.Rose also discussed the decision with Robert's treating physician, Dr. Kass, other physicians, and the hospital's ombudsman, all of whom apparently supported her decision.Dr. Kass, however, inserted a nasogastric feeding tube to keep Robert alive pending input from the hospital's ethics committee.

Eventually, the 20-member ethics committee unanimously approved Rose's decision.In the course of their deliberations, however, the committee did not speak with Robert's mother or sister.Florence learned, apparently through an anonymous telephone call, that Dr. Kass planned to remove Robert's feeding tube.Florence and Rebekah applied for a temporary restraining order to bar him from so doing, and the court granted the motion ex parte.

Rose immediately thereafter petitioned for appointment as Robert's conservator.In the petition, she asked the court to determine that Robert lacked the capacity to give informed consent for medical treatment and to confirm her authority "to withdraw and/or withhold medical treatment and/or life-sustaining treatment, including, but not limited to, withholding nutrition and hydration."Florence and Rebekah (hereafter sometimes objectors) opposed the petition.After a hearing, the court appointed Rose as conservator but reserved judgment on her request for authority to remove Robert's feeding tube.The court ordered the conservator to continue the current plan of physical therapy for 60 days and then to report back to the court.The court also visited Robert in the hospital.

After the 60-day period elapsed without significant improvement in Robert's condition, the conservator renewed her request for authority to remove his feeding tube.The objectors asked the trial court to appoint independent counsel for the conservatee.The trial court declined, and the Court of Appeal summarily denied the objectors' petition for writ of mandate.We granted review and transferred the case to the Court of Appeal, which then directed the trial court to appoint counsel.(Wendland v. Superior Court(1996)49 Cal. App.4th 44, 56 Cal.Rptr.2d 595.)Appointed counsel, exercising his independent judgment (see generallyConservatorship of Drabick(1988)200 Cal.App.3d 185, 212-214, 245 Cal.Rptr. 840(Drabick)), decided to support the conservator's decision.(Because the conservator's and appointed counsel's positions in this court are essentially identical, we will henceforth refer solely to the conservator for brevity's sake.)The ensuing proceeding generated two decisions.In the first, the court set out the law to be applied at trial.The court found no "clear cut guidance" on how to evaluate a conservator's proposal to end the life of a conscious conservatee who was neither terminally ill nor in a persistent vegetative state.Nevertheless, drawing what assistance it could from cas...