Guardianship of Browning, In re

• Decision Date: 13 September 1990
• Docket Number: No. 74174,74174
• Citation: 568 So.2d 4
• Parties: , 15 Fla. L. Weekly S459, 1 NDLR P 81 In re GUARDIANSHIP OF Estelle M. BROWNING. STATE of Florida, Petitioner, v. Doris F. HERBERT, etc., Respondent.
• Court: Florida Supreme Court

Page 4

568 So.2d 4

59 USLW 2192, 15 Fla. L. Weekly S459, 1 NDLR P 81

In re GUARDIANSHIP OF Estelle M. BROWNING STATE of Florida, Petitioner, v. Doris F. HERBERT, etc., Respondent.

No. 74174.

Supreme Court of Florida.

Sept. 13, 1990.

James T. Russell, State Atty., and C. Marie King, Asst. State Atty., Clearwater, for petitioner/cross-respondent.

George J. Felos of Felos & Felos, Dunedin, for respondent/cross-petitioner.

William Trickel, Jr., Orlando, and Giles R. Scofield, III, New York City, amicus curiae for Concern for Dying.

John R. Day and Robert D. Miller of Shutts & Bowen, West Palm Beach, Fenella Rouse and M. Rose Gasner and Richard Wasserman of Sinnreich & Wasserman, New York City, amicus curiae for Soc. for the Right to Die, Inc.

James K. Stewart and Anna Mastroianni Boe of Green, Stewart & Farber, Washington, D.C., amicus curiae for The American Geriatrics Soc.

BARKETT, Justice.

We have for review In re Guardianship of Browning, 543 So.2d 258 (Fla. 2d DCA 1989), in which the district court certified the following question as one of great public importance:

Whether the guardian of a patient who is incompetent but not in a permanent vegetative state and who suffers from an incurable, but not terminal condition, may exercise the patient's right of self-determination to forego sustenance provided artificially by a nasogastric tube?

Id. at 274. ¹ We answer the question in the affirmative as qualified in this opinion.

I. THE FACTS

On November 19, 1985, a competent Estelle Browning executed a declaration that provides, in part:

If at any time I should have a terminal condition and if my attending physician has determined that there can be no recovery from such condition and that my death is imminent, I direct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong artificially the process of dying.

In addition, Mrs. Browning stipulated that she desired not to have "nutrition and hydration (food and water) provided by gastric tube or intravenously." ²

At eighty-six years of age, Mrs. Browning suffered a stroke. She was admitted to the hospital on November 9, 1986, where her treating physician diagnosed a massive hemorrhage in the left parietal region of the brain, the portion that controls cognition. Because Mrs. Browning was unable to swallow, she underwent a gastrostomy on November 20 during which a feeding tube was inserted directly into her stomach.

The following day, she was discharged from the hospital and transferred to a nursing home where she remained bedridden and required total care. Mrs. Browning's second cousin and only living relative, Doris Herbert, eighty, was then appointed guardian of the person and property of Mrs. Browning.

During the course of her stay in the nursing home, Mrs. Browning was plagued with physical difficulties, including complications with her feeding tube, which became dislodged. ³ The gastrostomy tube was replaced by a nasogastric tube on May 19, 1988. ⁴

Nearly two years after Mrs. Browning suffered her stroke, the guardian filed a petition in circuit court to terminate the nasogastric feeding based upon Mrs. Browning's living will. At the evidentiary hearing, the guardian presented additional evidence of Mrs. Browning's wishes. The evidence reflected that a predecessor living will, written in 1980, contained the same provisions for rejection of medical treatment at issue as the one presently before the Court. Believing that the death of a witness to the 1980 will might have rendered the will invalid, she executed the 1985 document. Neighbors also testified that Mrs. Browning had expressed her wishes orally in this regard several times. Mrs. Rose Kings, a close personal friend of Mrs. Browning since 1965, witnessed Mrs. Browning execute the 1985 document. She testified that Mrs. Browning signed the declaration about two days after visiting patients in a nursing home and had said, " 'Oh Lord, I hope this never happens to me ... thank God I've got this taken care of. I can go in peace when my time comes.' " Mrs. Kings' husband added that Mrs. Browning had a friend in the hospital on life-support and remarked that she " 'never want[ed] to be that way.' "

The guardian, Mrs. Herbert, who had lived with Mrs. Browning from 1982 to 1986, testified that she had discussed the withdrawal of life-prolonging measures with Mrs. Browning following the death of Mrs. Browning's husband in 1978. According to Mrs. Herbert, Mrs. Browning said that she did not want to be maintained through artificial life-support mechanisms.

The consensus of the medical evidence indicated that the brain damage caused by the hemorrhage was major and permanent and that there was virtually no chance of recovery. Death would occur within seven to ten days were the nasogastric feeding tube removed. However, Mrs. Browning's life could have been prolonged up to one year as long as she was maintained on the feeding tube and assuming the absence of infection.

At the same time, the medical evidence reflected that Mrs. Browning was not comatose. Although she was noncommunicative, she "appeared alert and would follow [a visitor] with her eyes." However, she "would not blink in any consistent pattern when asked to respond to simple questions[,] ... would not follow any simple commands[, and] ... would not look to the right or to the left on command." A nurse testified that Mrs. Browning had attempted to say a word on a few occasions, although she conceded that the words had not been clear and the speech was garbled.

Dr. James Barnhill, a neurologist, described Mrs. Browning as noncommunicative and essentially existing only by virtue of fluid and nutrition supplied by the feeding tube. Dr. Barnhill opined that she was in a persistent vegetative state, which he defined as the absence of cognitive behavior and inability to communicate or interact purposefully with the environment.

The trial court found that Mrs. Browning could continue to live for an indeterminate time with artificial sustenance but that death would result within four to nine days without it. Construing Florida's "Life-Prolonging Procedure Act," sections 765.01-.15, Florida Statutes (1987), the trial court concluded that death was not imminent, and it denied the petition.

The district court affirmed the trial court's decision that the termination of this treatment was not permitted by the statute. However, the district court held that Mrs. Browning was entitled to relief under our state constitution, which expressly recognized every citizen's basic right of privacy. Browning, 543 So.2d at 261. The district court then authorized the guardian to make the decision in accordance with procedures established in the opinion.

II. A COMPETENT PERSON'S RIGHT OF PRIVACY

We agree with the district court that chapter 765 of the Florida Statutes (1987) is not applicable to Mrs. Browning's situation. ⁵ We also agree with the district court that Mrs. Browning's fundamental right of self-determination, commonly expressed as the right of privacy, controls this case.

Because the word "privacy" generally has been used in common parlance in its informational or disclosural sense, its broader meaning has been somewhat ignored. However, the concept of privacy encompasses much more than the right to control the disclosure of information about oneself. "Privacy" has been used interchangeably with the common understanding of the notion of "liberty," and both imply a fundamental right of self-determination subject only to the state's compelling and overriding interest. For example, privacy has been defined as an individual's "control over or the autonomy of the intimacies of personal identity," Gerety, Redefining Privacy, 12 Harv.C.R.-C.L.L.Rev. 233, 281 (1977); or as a "physical and psychological zone within which an individual has the right to be free from intrusion or coercion, whether by government or by society at large." Cope, To Be Let Alone: Florida's Proposed Right of Privacy, 6 Fla.St.U.L.Rev. 671, 677 (1978).

These components of privacy are the same as those encompassed in the concept of freedom, and, as recognized in In re T.W., 551 So.2d 1186 (Fla.1989), are deeply rooted in our nation's philosophical and political heritage. See also Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985). In Florida, we have recognized that this fundamental right of privacy has been expressly enumerated in article I, section 23 of the Florida Constitution, which provides "an explicit textual foundation for those privacy interests inherent in the concept of liberty." Rasmussen v. South Fla. Blood Serv., Inc., 500 So.2d 533, 536 (Fla.1987).

Thus, we begin with the premise that everyone has a fundamental right to the sole control of his or her person. As Justice Cardozo noted seventy-six years ago:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body....

Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914). An integral component of self-determination is the right to make choices pertaining to one's health, including the right to refuse unwanted medical treatment. "We can conceive of few more personal or private decisions concerning one's body that one can make in the course of a lifetime ... [than] the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment." In re T.W., 551 So.2d at 1192; see Public Health Trust v. Wons, 541 So.2d 96 (Fla.1989).

Recognizing that one has the inherent right to make choices about medical treatment, we necessarily conclude that this right encompasses all medical choices. A competent individual has the constitutional right to refuse medical treatment regardless of his or her medical condition. Wons; accord Cruzan ex rel. Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 110 S.Ct. 2841, 2852, 111...