Welfare of Colyer, Matter of

• Decision Date: 10 March 1983
• Docket Number: No. 48521-6,48521-6
• Citation: 660 P.2d 738,99 Wn.2d 114
• Parties: In the Matter of the WELFARE OF Bertha COLYER.
• Court: Washington Supreme Court

Page 114

99 Wn.2d 114

660 P.2d 738

In the Matter of the WELFARE OF Bertha COLYER.

No. 48521-6.

Supreme Court of Washington En Banc.

March 10, 1983.

Smith & Rosellini, Philip E. Rosellini, Gregory L. Kosanke, Bellingham, for appellant.

Karlene K. Weiland, Lynden, for respondent.

BRACHTENBACH, Justice.

The husband of a woman in a chronic, vegetative state sought a court order to discontinue life sustaining systems. Because of the immediate need for judicial review, a special en banc hearing was held, and we affirmed the trial court's order directing that the life support systems be withdrawn. With this opinion we set forth the reasons for that order and establish general guidelines for future cases.

I

We begin by recounting the facts. On March 8, 1982, Bertha Colyer, age 69, sustained a cardiopulmonary arrest; her heart stopped beating. Although she was resuscitated by paramedics, her body was without oxygen for approximately 10 minutes, resulting in massive brain damage.

After being taken to St. Luke's Hospital in Bellingham, she was kept alive by artificial life support mechanisms. She required a respirator in order to breathe, and she remained in a comatose state, unresponsive to pain or verbal stimuli. In short, she was unable to breathe on her own and remained in a persistent vegetative state.

The prognosis for any sort of meaningful existence was zero, according to the findings. Weeks elapsed without any signs of neurological improvement or lightening of her coma. Two physicians, a cardiologist and a neurologist, agreed that the likelihood of Bertha Colyer recovering any significant amount of brain function was extremely small. They also agreed that she would probably expire within a short period if removed from the respirator. Even their most optimistic prognosis was that she might be able to breathe on her own, but would persist in a very infantile state, unable to speak or communicate and requiring maintenance of all bodily functions.

Bertha Colyer's husband was appointed guardian over Bertha's person and estate; he petitioned the Superior Court to authorize removal of the life support systems. The husband's affidavit in support of the petition stated in part:

It is very painful for me and Bertha's family to see her in her current condition. We all love her very much and would like for her to be able to live her final days and pass through this life with dignity, rather than being maintained by artificial means.

A guardian ad litem was appointed to represent the interests of Bertha Colyer. After a hearing, which included testimony from the two physicians and Bertha Colyer's husband and sisters, the Superior Court judge ruled that the "life support systems presently in place and sustaining Bertha Colyer shall be withdrawn and terminated forthwith." He based his ruling on the patient's right of privacy, the testimony from her family that it would be Bertha's wish to have the life support systems removed, and the medical testimony that there was no hope for her recovery to a sapient state. The trial court stayed its order, however, to provide the opportunity for review by this court.

On April 1, 1982, after hearing oral argument, we affirmed the trial court's order. Bertha Colyer died peacefully soon after the life support systems were removed.

II

Despite Bertha Colyer's dismal prognosis, she was not legally dead according to the criteria of the Uniform Determination of Death Act. See In re Bowman, 94 Wash.2d 407, 617 P.2d 731 (1980). This act, judicially adopted in Washington, states:

An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.

In re Bowman, supra at 421, 617 P.2d 731 (quoting Uniform Determination

of Death Act (August 7, 1980 recommendation)). While Bertha Colyer was unable to breathe without a respirator, her other circulatory functions, such as her heartbeat and blood pressure, remained stable. Moreover, while she remained in a coma, inert to any sensory stimuli, monitors indicated some minimal reflex movement in the lower portion of her brain stem and the cerebral cortex. Thus, her situation is not governed by Bowman; it is expressly excluded from its scope. Bowman, supra at 417, 617 P.2d 731.

Nor is this situation governed by the Natural Death Act passed by our Legislature in 1979. RCW 70.122. This act enables a competent adult to sign a directive, witnessed by two disinterested parties, which requires the removal or withholding of his or her life sustaining treatment where such treatment only serves to artificially prolong the moment of death, made imminent by an incurable injury, disease, or illness. RCW 70.122.030. When such a directive has been signed, the course is set: the directive is to be effectuated in good faith, RCW 70.122.060, and no civil or criminal liability attaches. RCW 70.122.050.

While this act is a salutary step towards establishing legislative guidance in this area, it does not speak to the situation where no directive has been signed. Nonetheless, we note that the findings of the Legislature and the thrust of the act are in harmony with our ruling today:

The legislature finds that adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in instances of a terminal condition.

The legislature further finds that modern medical technology has made possible the artificial prolongation of human life beyond natural limits.

The legislature further finds that, in the interest of protecting individual autonomy, such prolongation of life for persons with a terminal condition may cause loss of patient dignity, and unnecessary pain and suffering, while providing nothing medically necessary or beneficial to the patient.

RCW 70.122.010. Thus, our Legislature has acknowledged both an individual's right to control medical decisions and the right to privacy as grounds for withholding or withdrawing life sustaining treatment.

III

As this is a case of first impression in Washington, we look to other jurisdictions for information and guidance. Five other states have addressed the issue of an incompetent's right to have life sustaining treatment withheld or withdrawn. See In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976); Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977) (hereinafter Saikewicz ); Leach v. Akron Gen. Med. Ctr., 68 Ohio Misc. 1, 22 O.O.3d 49, 426 N.E.2d 809 (1980); Severns v. Wilmington Med. Ctr., Inc., 421 A.2d 1334 (Del.1980); In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981). All of these courts have recognized the right of a patient to refuse life sustaining treatment in appropriate circumstances. This right has been premised on a constitutional right of privacy, Quinlan, supra, or, alternatively, on a common law right to be free from invasions of one's bodily integrity. In re Storar, supra.

A. Right of Privacy

The United States Supreme Court has identified a right of privacy emanating from the penumbra of the specific guarantees of the Bill of Rights and from the language of the First, Fourth, Fifth, Ninth and Fourteenth Amendments. Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). In Roe, the United States Supreme Court determined that the right of privacy was a personal right "broad enough to encompass a woman's decision whether or not to terminate her pregnancy", subject only to countervailing, compelling state interests. Roe v. Wade, supra, 410 U.S. at 153, 93 S.Ct. at 727. While the perimeters of this right have not been defined, the "freedom to care for one's health and person " falls within its purview. Doe v. Bolton, 410 U.S. 179, 213, 93 S.Ct. 739, 758, 35 L.Ed.2d 201 (1973) (Douglas, J., concurring).

From these holdings, our sister states have reasoned that the privacy right is "broad enough to encompass a patient's decision to decline medical treatment under certain circumstances". In re Quinlan, supra at 40, 355 A.2d 647; see also Leach, supra, 426 N.E.2d at 813; Storar, supra, 420 N.E.2d at 71, 438 N.Y.S.2d at 273; Saikewicz, supra at 740, 370 N.E.2d 417.

The decision by the incurably ill to forego medical treatment and allow the natural processes of death to follow their inevitable course is so manifestly a "fundamental" decision in their lives, that it is virtually inconceivable that the right of privacy would not apply to it.

In In re Eichner, 73 A.D.2d 431, 459, 426 N.Y.S.2d 517, (1980), aff'd sub nom. In re Storar, supra (hereinafter Eichner ); see also Cantor, A Patient's Decision To Decline Life-Saving Medical Treatment: Bodily Integrity Versus the Preservation of Life, 26 Rutgers L.Rev. 228 (1973); Comment, Roe v. Wade and In Re Quinlan: Individual Decision and the Scope of Privacy's Constitutional Guarantee, 12 U.S.F.L.Rev. 111 (1977).

In Washington, we have previously recognized this right of privacy in the context of an abortion decision. State v. Koome, 84 Wash.2d 901, 530 P.2d 260 (1975). In harmony with other jurisdictions, we now hold that an adult who is incurably and terminally ill has a constitutional right of privacy that encompasses the right to refuse treatment that serves only to prolong the dying process, given the absence of countervailing state interests. Support for this holding is also found in our state constitution. Const. art. 1, § 7.

This privacy right, if founded on the federal constitution and applied to the states through the Fourteenth Amendment, extends only to situations where state action exists. United States v. Stanley, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed.2d 835 (1883), ...