Edna M.F., Matter of

• Citation: 210 Wis.2d 557,563 N.W.2d 485
• Decision Date: 12 June 1997
• Docket Number: No. 95-2719,95-2719
• Parties: In the Matter of the Guardianship and Protective Placement of EDNA M.F. Betty SPAHN, Guardian of Edna M.F. and Mark Wittman, Guardian Ad Litem for Edna M.F., Appellants, v. Howard B. EISENBERG, Respondent-Designate.
• Court: Wisconsin Supreme Court

Page 485

563 N.W.2d 485

210 Wis.2d 557

In the Matter of the Guardianship and Protective Placement of EDNA M.F Betty SPAHN, Guardian of Edna M.F. and Mark Wittman Guardian Ad Litem for Edna M.F., Appellants, v. Howard B. EISENBERG, Respondent-Designate.

No. 95-2719.

Supreme Court of Wisconsin.

Argued Jan. 8, 1997.

Decided June 12, 1997.

For the appellant there were briefs (in the Court of Appeals & Supreme Court) by John R. Hutchinson and Wynia & Billings, S.C., Marshfield and oral argument by John R. Hutchinson.

For the Guardian Ad Litem there was a brief (in the Supreme Court) by Mark J. Wittman and Zappen & Meissner, Marshfield and oral argument by Mark J. Wittman.

For the respondent-designate there was a brief and oral argument (in the Supreme Court) by Howard B. Eisenberg, Milwaukee.

Amicus curiae brief was filed (in the Court of Appeals) by William P. Donaldson, Madison for the Board on Aging and Long Term Care of the State of Wisconsin.

Amicus curiae brief was filed (in the Court of Appeals) by Betsy J. Abramson, Madison, for the Elder Law Center of the Coalition of Wisconsin Aging Groups.

¶1 DONALD W. STEINMETZ, Judge

Betty Spahn (Spahn) seeks review of a decision by the Circuit Court for Wood County, Judge Dennis D. Conway, denying her request to withdraw artificial nutrition from her sister, Edna M.F. The court held that it was without authority to grant Spahn's request because Edna is not in a persistent vegetative state. This case presents this court with two issues:

¶2 1) Whether the guardian of an incompetent person who has not executed an advance directive and is not in a persistent vegetative state has the authority to direct withdrawal of life sustaining medical treatment from the incompetent person; and

¶3 2) Whether in this case, notwithstanding the fact that she is not in a persistent vegetative state, there is a clear statement evidenced in the record of Edna's desire to die rather than have extreme measures applied to sustain her life under circumstances such as these.

¶4 Relying on this court's previous decision in In re Guardianship of L.W., 167 Wis.2d 53, 482 N.W.2d 60 (1992), we hold that a guardian may only direct the withdrawal of life-sustaining medical treatment, including nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward. We further hold that in this case, where the only indication of Edna's desires was made at least 30 years ago and under different circumstances, there is not a clear statement of intent such that Edna's guardian may authorize the withholding of her nutrition.

¶5 Edna M.F. is a 71-year old woman who has been diagnosed with dementia of the Alzheimer's type. She is bedridden, but her doctors have indicated that she responds to stimulation from voice and movement. She also appears alert at times, with her eyes open, and she responds to mildly noxious stimuli. ¹ According to these doctors, her condition does not meet the definition of a persistent vegetative state. In 1988, a permanent feeding tube was surgically inserted in Edna's body. Edna currently breathes without a respirator, but she continues to receive artificial nutrition and hydration. Edna's condition is not likely to improve.

¶6 Edna's sister and court-appointed guardian, Betty Spahn, seeks permission to direct the withholding of Edna's nutrition, claiming that her sister would not want to live in this condition. However, the only testimony presented at trial regarding Edna's views on the use of life-sustaining medical treatment involves a statement made in 1966 or 1967. At that time, Spahn and Edna were having a conversation about their mother, who was recovering from depression, and Spahn's mother-in-law, who was dying of cancer. Spahn testified that during this conversation, Edna said to her: "I would rather die of cancer than lose my mind." Spahn further testified that this was the only time that she and Edna discussed the subject and that Edna never said anything specifically about withholding or withdrawing life-sustaining medical treatment.

¶7 In October of 1994, the Ethics Committee at the Marshfield Nursing and Rehabilitation, the facility where Edna lives, met to discuss the issue of withholding artificial nutrition from Edna. The committee approved the withholding of the nutrition if no family member objected. However, one of Edna's nieces refused to sign a statement approving the withdrawal of nutrition.

¶8 On January 12, 1995, Spahn filed a petition in Wood County Circuit Court as guardian of an incompetent person, Edna M.F., asking the court to issue an order confirming Spahn's decision to withhold nutrition from Edna. On January 13, 1995, the court appointed Mark Wittman (Wittman) as the guardian ad litem. The court denied Spahn's petition. The case is now before this court on a petition to bypass the court of appeals. However, because both Spahn and Wittman are arguing to withhold nutrition, this court has appointed Attorney Howard Eisenberg as respondent-designate to argue for sustaining the life of Edna M.F.

¶9 The issue of the right to terminate life-sustaining medical treatment first came to the national forefront in the controversial case In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), cert. denied sub nom., 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976). In Quinlan, Joseph Quinlan petitioned the court to be appointed guardian of his 21-year old daughter, Karen. Karen was in a chronic persistent vegetative state ² and her father sought the express power to authorize "the discontinuance of all extraordinary medical procedures now allegedly sustaining Karen's vital processes and hence her life...." Id. 355 A.2d at 651. Because Karen existed in a persistent vegetative state, and there was no hope of her ever recovering from this state, the court granted Joseph Quinlan's requests. Id. 355 A.2d at 671-72.

¶10 Fourteen years later, the United States Supreme Court considered whether the state of Missouri could require clear and convincing evidence of an incompetent's wishes before authorizing the withdrawal of life-sustaining medical treatment, including nutrition and hydration, when the incompetent is in a persistent vegetative state. ³ Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). In making its decision, the Court determined that the states have an interest in protecting the lives of their citizens and that that interest is demonstrated, among other ways, "by treating homicide as a serious crime." Id. at 280, 110 S.Ct. at 2852. On the other hand, the Court notes that "[i]t cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment." Id. at 281, 110 S.Ct. at 2853. The Court concludes that the rights of the state and the individual must be balanced: "we think a State may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual." Id.

¶11 The Court upheld the decision of the Missouri Supreme Court to require that a guardian meet a "clear and convincing" standard before terminating an incompetent's life-sustaining medical treatment, including artificial nutrition and hydration. ⁴ The Court explained that these life-and-death decisions have great consequences, and that an erroneous decision to terminate cannot be remedied:

An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw of life-sustaining treatment, however, is not susceptible to correction.

Id. at 283-84, 110 S.Ct. at 2854.

¶12 Two years after the Cruzan decision was rendered, this court was faced with a similar case, In re Guardianship of L.W., 167 Wis.2d 53, 482 N.W.2d 60 (1992). In L.W., this court considered the issue of whether an incompetent individual in a persistent vegetative state has the right to refuse life-sustaining medical treatment, including nutrition and hydration. The court further considered whether a court-appointed guardian may exercise that right on behalf of the incompetent patient. This court began its analysis of the situation with an exploration of the possible constitutional rights implicated by these circumstances, and concluded "that an individual's right to refuse unwanted medical treatment emanates from the common law right of self-determination and informed consent, the personal liberties protected by the Fourteenth Amendment, and from the guarantee of liberty in Article I, section I of the Wisconsin Constitution." Id. at 67, 482 N.W.2d 60.

¶13 This court further concluded that the right to refuse unwanted treatment applies to both competent and incompetent individuals, and that the right of the incompetent to refuse may be exercised by his or her guardian. Id. at 73, 76, 482 N.W.2d 60. The court in L.W. then faced the choice of what standard the guardian should apply in determining whether to continue life-sustaining medical treatment. The guardian argued for a subjective test considering the ward's past values, wishes, and beliefs (the "substituted judgment" standard), and the guardian ad litem argued in favor of the standard upheld in Cruzan requiring "clear and convincing evidence" of the ward's desires. Noting that this court has rejected the substituted judgment standard in the past ⁵ and...