Supreme Judicial Court of Massachusetts
We are asked to decide whether the substituted judgment of a person in a
persistent vegetative state that the artificial maintenance of his nutrition and
hydration be discontinued shall be honored. The effectuation of the ward's
wishes is supported by his wife-guardian and his family, but is opposed by his
attending physicians and the defendant hospital. We are faced again with a case
where "[a]dvances in medical science have given doctors greater control over the
time and nature of death" and where physicians have developed a "range of
options . . . to postpone death irrespective of the effect on the patient."
Superintendent of Belchertown State School v. Saikewicz, (1977). We
recognize that "[t]he case . . . raises moral, social, technological,
philosophical, and legal questions involving the interplay of many disciplines.
No one person or profession has all the answers." Matter of Conroy,
(1985).
Sensitive to the significance and complexity of our decision, we do not shirk
our responsibility, for we are aware that the advances of medical science and
technology are "compelling the public, through the courts, if not the
legislatures, to formulate new standards and procedures for measuring the
conduct of persons involved in the health care of persons with irreversible
brain damage." Severns v. Wilmington Medical Center, Inc. It has been
said that "we are on the threshold of new terrain -- the penumbra where death
begins but life, in some form, continues. We have been led to it by the medical
miracles which now compel us to distinguish between 'death,' as we have known
it, and death in which the body lives in some fashion but the brain (or a
significant part of it) does not." See, in accord, Barber v. Superior
Court.
In Saikewicz, and cases following it, we have been confronted with
some of the legal implications of these new medical advances, as had been the
Supreme Court of New Jersey earlier in Matter of Quinlan…. We have
determined that, in certain circumstances, further medical treatment may be
discontinued. The Supreme Court of New Jersey has recently restated the dilemma:
"As scientific advances make it possible for us to live longer than ever before,
even when most of our physical and mental capacities have been irrevocably lost,
patients and their families are increasingly asserting a right to die a natural
death without undue dependence on medical technology or unnecessarily protracted
agony -- in short, a right to 'die with dignity.'" Matter of Conroy. It
is in this context that we turn to consider the facts and the law applicable to
this appeal.
The medical incident and initial proceedings. Paul E. Brophy, Sr.
(Brophy), was afflicted on March 22, 1983, by the rupture of an
aneurysm located at the apex of the basilar artery. Prior to that time, Brophy
had been a healthy, robust man, who had been employed by the town of Easton as a
fireman and emergency medical technician. He enjoyed deer hunting, fishing,
gardening, and performing household chores. About midnight on March 22, 1983, he
complained to his wife, Patricia, of a severe, "splitting" headache. He became
unconscious. His wife called the Easton fire department, and Brophy was
transported to Goddard Hospital. An angiogram at Goddard Hospital revealed the
aneurysm. Surgery ensued on April 6, 1983, but was not successful. He has never
regained consciousness. Brophy is now in a condition described as a "persistent
vegetative state." He is unable to chew or swallow, and is maintained by an
artificial device, surgically inserted on December 22, 1983, known as a
gastrostomy tube (G-tube) through which he receives nutrition and hydration. On
June 28, 1983, he was transferred to the New England Sinai Hospital (hospital),
where he remains as a patient.
Brophy's wife and family wish the G-tube removed or clamped. When the
physicians and hospital refused, litigation was commenced by Brophy's wife in
the Probate and Family Court Department. A judge of the Probate Court, after
extensive hearings, found that Brophy, now incompetent, would, if competent,
decline to receive food and water in this manner, and that Brophy's wife and
guardian, Patricia E. Brophy, and his family and relatives agree with this
choice. Nevertheless, the judge ordered the continuation of nutrition and
hydration by use of the G-tube and enjoined both the hospital and the guardian
from removing or clamping the tube. We now set aside the judgment and remand the
case for entry of a new judgment. In doing so, we sustain that portion of the
judgment which respects the right of the hospital to refuse to remove or clamp
the G-tube, but authorize the guardian to remove Brophy from the hospital to the
care of other physicians who will honor Brophy's wishes.
b. The medical facts. Diagnostic techniques utilized to determine the nature
of Brophy's illness revealed subarachnoid bleeding in the posterior fossa
surrounding the upper brain stem. Later, an angiogram revealed an aneurysm
located at the apex of the basilar artery. On April 6, 1983, Brophy underwent a
right frontotemporal craniotomy. Shortly after surgery, he received several CT
scans which showed extensive damage, namely, complete infarction of his left
posterior cerebral artery and infarction of the right temporal lobe of the
brain. After surgery, he initially received nutrition by means of a nasogastric
tube.
On June 28, 1983, Brophy was transferred to the New England Sinai Hospital.
He received intensive physical and speech therapy for about three to four weeks.
After he showed no response to that therapy, it was permanently discontinued. On
July 7, 1983, Doctor Ferey Shahrokhi diagnosed Brophy as being in a
"semi-vegetative or vegetative state." In August, 1983, he contracted pneumonia,
and the hospital requested his wife's instructions regarding a "do not
resuscitate" order (DNR order) in the event of a cardiac arrest. Mrs. Brophy
requested a DNR order, and one was entered on his chart.
On December 21, 1983, Brophy was transferred to the Cardinal Cushing General
Hospital, with the consent of his wife, and on December 22, 1983, he underwent a
surgical procedure in which a G-tube was inserted through a stoma in the
abdominal wall into the stomach to provide him with nutrition and hydration. On
December 29, 1983, he was discharged from the Cardinal Cushing General Hospital
and was readmitted into the New England Sinai Hospital.
Although Brophy is not technically brain dead, he has suffered serious and
irreversible damage to his brain. Some areas of his brain remain undamaged but
have been stranded and left dysfunctional. The damage makes him unable to
integrate input from his environment, and to commence voluntary activity; he
lacks cognitive functioning such as reasoning. Although his body responds to
certain stimuli, it is probable that the actions are reflexive and do not result
from cognitive activity. He appears to be comfortable, and, on the occasions
when he shows signs of discomfort, it appears that medication ameliorates that
discomfort.
According to the testimony of Dr. Ronald Cranford, who has made extensive
studies regarding the condition of persistent vegetative state, the likelihood
of Brophy's regaining cognitive functioning is substantially less than one per
cent. The probate judge found that it is highly unlikely that he will ever
regain cognitive behavior, the ability to communicate, or the capability of
interacting purposefully with his environment.
Apart from the extreme injury to his brain, Brophy's other organs are
functioning relatively well. The judge found that he is not terminally ill, nor
is he in danger of imminent death from any other medical cause. It appears that
he may live in a persistent vegetative state for several years, although a
non-aggressive treatment plan will probably shorten his life.
Brophy is dependent on the G-tube for life sustaining nutrition and
hydration. The G-tube is a pliable silicone tube, about one and one-half feet in
length with two openings at the top. Food enters the larger opening of the
G-tube via plastic tubing, some two and one-half feet long, which in turn is
connected to a plastic bag which hangs above the level of the patient (allowing
the liquid food n18 to flow from that bag by means of gravity into the G-tube).
Brophy is fed four times a day, by a nurse who pours liquid food into the
plastic bag. Nothing mechanical regulates the flow of food from the bag to the
plastic tubing to the G-tube to his stomach.
While the use of a G-tube can have certain adverse side effects, the judge
found that Brophy had experienced none of the adverse side effects during a
period of approximately eighteen months. The judge found that it is not likely
that he will experience complications in the future. The judge concluded that
now that the G-tube is in place, it is the least intrusive, least invasive, and
most problem-free way of providing nutrition and hydration to him. Brophy shows
no signs or symptoms of discomfort as a result of the use of the G-tube. The
judge found that utilization of the G-tube is not "painful, uncomfortable,
burdensome, unusual, hazardous, invasive or intrusive," even in relation to a
conscious patient.
Removal of the G-tube likely would create various effects resulting from the
lack of hydration and nutrition, leading ultimately to death. The judge found
that death by dehydration is extremely painful and uncomfortable for a human
being.
Brophy requires constant care. He receives seven and one-half hours of
nursing care each day. He has no control of his muscles or movements. The judge
found that his care by others consists of "bathing, shaving, mouth care,
grooming, caring for his bowels and bladder, changing his bed linens and
clothing, turning him in bed to prevent bedsores and providing him with food and
hydration through the G Tube."
The finding as to substituted judgment. The judge found on the basis
of ample evidence which no one disputes, that Brophy's judgment would be to
decline the provision of food and water and to terminate his life. In reaching
that conclusion, the judge considered various factors including the following:
(1) Brophy's expressed preferences; (2) his religious convictions and their
relation to refusal of treatment; (3) the impact on his family; (4) the
probability of adverse side effects; and (5) the prognosis, both with and
without treatment. The judge also considered present and future incompetency as
an element which Brophy would consider in his decision-making process.
The judge relied on several statements made by Brophy prior to the onset of
his illness. Although he never had discussed specifically whether a G-tube or
feeding tube should be withdrawn in the event that he was diagnosed as being in
a persistent vegetative state following his surgery, the judge inferred that, if
presently competent, Brophy would choose to forgo artificial nutrition and
hydration by means of a G-tube. The judge found that Brophy would not likely
view his own religion as a barrier to that choice.
Brophy's wife and guardian, Patricia, in reaching her decision that her
husband's "life is over" went through long and agonizing research, reflection,
and prayer. She discussed her decision with family and clergy. She has performed
her duties as guardian and spouse with the highest degree of ethical and moral
exaction.
The matter was also thoroughly investigated by the guardian ad litem, who
made three reports. He recommended to the court that the G-tube not be removed,
that a DNR order be entered on Brophy's chart, and that a nonaggressive
treatment plan be implemented in the event of a life-threatening infection.
Doctor Lajos Koncz, Brophy's attending physician, refused to carry out
Patricia Brophy's request because it is his belief that he would wilfully be
causing Brophy's death. Dr. Koncz discussed the matter with the medical and
nursing staff at the hospital, who essentially agreed with his opinion. Dr.
Richard Field, physician-in-chief at the hospital, took the position that he
could not, personally or officially, comply with the request because it would
constitute a harmful act which would deliberately produce death. The medical
executive committee and the board of directors of the hospital indorsed the
position of Drs. Field and Koncz. The board of directors, however, was not
opposed to transferring Brophy to another medical institution if the Probate
Court authorized and ordered the removal of the G-tube. A significant portion of
the medical community disagrees with New England Sinai Hospital and considers it
appropriate to withhold hydration and nutrition from individuals like Brophy
when that is the wish of the patient and his family
.
The right to refuse treatment. We begin with the recognition that we
are involved in a difficult and demanding area of the law in which each case
presents issues of fundamental importance that require more than the mere
"mechanical reliance on legal doctrine." Superintendent of Belchertown State
School v. Saikewicz, (1977). We encourage and seek insights and "the
collective guidance of those in health care, moral ethics, philosophy, and other
disciplines." We share a concern with the hospital, the guardians, the
physicians, and the amici curiae for acting in the best interests of the
patient. We are aided by our determination that the issue in the case at hand is
narrowly drawn and is limited solely to whether the substituted judgment of an
incompetent patient-ward in a persistent vegetative state to refuse the
continuance of artificial means of nutrition and hydration should be
honored.
The right of a patient to refuse medical treatment arises both from the
common law and the unwritten and penumbral constitutional right to privacy…. The
common law's implicit recognition that "a person has a strong interest in being
free from nonconsensual invasion of his bodily integrity," is now explicit in
this Commonwealth….
The right of self-determination and individual autonomy has its roots deep in
our history. John Stuart Mill stated the concept succinctly: "[T]he only purpose
for which power can be rightfully exercised over any member of a civilised
community, against his will, is to prevent harm to others. His own good, either
physical or moral, is not a sufficient warrant. He cannot rightfully be
compelled to do or forbear because it will be better for him to do so, because
it will make him happier, because, in the opinion of others, to do so would be
wise, or even right." Mill, On Liberty…
It is in recognition of these fundamental principles of individual autonomy
that we sought, in Saikewicz, to shift the emphasis away from a
paternalistic view of what is "best" for a patient toward a reaffirmation that
the basic question is what decision will comport with the will of the person
involved, whether that person be competent or incompetent. As to the latter type
of person, we concluded that the doctrine of substituted judgment, while not
without its shortcomings, best serves to emphasize the importance of honoring
the privacy and dignity of the individual. Thus, we stated that "we recognize a
general right in all persons to refuse medical treatment in appropriate
circumstances. The recognition of that right must extend to the case of an
incompetent, as well as a competent, patient because the value of human dignity
extends to both." Saikewicz. We emphasized further, that "[i]t does not
advance the interest of the State or the ward to treat the ward as a person of
lesser status or dignity than others. To protect the incompetent person within
its power, the State must recognize the dignity and worth of such a person and
afford to that person the same panoply of rights and choices it recognizes in
competent persons." This theme has reappeared in many of our recent decisions
where the protection of rights of an incompetent person was at stake….
The right to refuse medical treatment in life threatening situations is not
absolute. Commissioner of Correction v. Myers, (1979).
Superintendent of Belchertown State School v. Saikewicz (1977).
Matter of Conroy. We have noted, however, that "the State's interest in
the preservation of life does not invariably control the right to refuse
treatment in cases of positive prognosis." Commissioner of Correction v.
Myers. See Lane v. Candura (recognizing a competent person's right
to refuse amputation of a gangrenous leg). We have recognized at least four
countervailing State interests: (1) the preservation of life; (2) the protection
of interests of innocent third parties; (3) the prevention of suicide; and (4)
the maintenance of the ethical integrity of the medical profession.
Saikewicz….
We have contended that the primary goal of the substituted judgment standard
is "to determine with as much accuracy as possible the wants and needs of the
individual involved." Saikewicz. The parties do not contest that the
evidence was sufficient to support the judge's findings concerning Brophy's
subjective viewpoint. We agree.
Accepting that Brophy's substituted judgment would be to discontinue
providing nutrients through the G-tube, we are left only with the question
whether the Commonwealth's interests require that his judgment be overridden. It
is natural to begin with the most significant interest in this case, the
interest in the preservation of life….
The concern for the preservation of the life of the patient normally involves
an interest in the prolongation of life. Thus, the State's interest in
preserving life is very high when "human life [can] be saved where the
affliction is curable." Saikewicz. That interest wanes when the
underlying affliction is incurable and would "soon cause death regardless of any
medical treatment." Commissioner of Correction v. Myers. The calculus
shifts when the issue is not "whether, but when, for how long, and at what cost
to the individual that life may be briefly extended." Commissioner of
Correction v. Myers.
When we balance the State's interest in prolonging a patient's life against
the rights of the patient to reject such prolongation, we must recognize that
the State's interest in life encompasses a broader interest than mere corporeal
existence. In certain, thankfully rare, circumstances the burden of maintaining
the corporeal existence degrades the very humanity it was meant to serve. The
law recognizes the individual's right to preserve his humanity, even if to
preserve his humanity means to allow the natural processes of a disease or
affliction to bring about a death with dignity. In stating this, we make no
judgment based on our own view of the value of Brophy's life, since we do not
approve of an analysis of State interests which focuses on Brophy's quality of
life. The judge correctly disavowed pronouncing judgment that Brophy's life is
not worth preserving.
The duty of the State to preserve life must encompass a recognition of an
individual's right to avoid circumstances in which the individual himself would
feel that efforts to sustain life demean or degrade his humanity. It is
antithetical to our scheme of ordered liberty and to our respect for the
autonomy of the individual for the State to make decisions regarding the
individual's quality of life. It is for the patient to decide such issues. Our
role is limited to ensuring that a refusal of treatment does not violate legal
norms.
In this case, the State's concern for the preservation of the life of the
patient is implicated. Here, Brophy is not terminally ill nor in danger of
imminent death from any underlying physical illness. It is true, however, that
his life expectancy has been shortened by his physical affliction. While the
judge found that continued use of the G-tube is not a highly invasive or
intrusive procedure and may not subject him to pain or suffering, he is left
helpless and in a condition which Brophy has indicated he would consider to be
degrading and without human dignity. In making this finding, it is clear that
the judge failed to consider that Brophy's judgment would be that being
maintained by use of the G-tube is indeed intrusive….
No case in this Commonwealth has presented such a situation. For example, in
Saikewicz, supra, we declined to force the use of highly invasive
treatment or extraordinary measures in the case of a terminally ill patient. In
Matter of Dinnerstein, the Appeals Court allowed the entry of a no-code
order in the case of a terminally ill patient suffering from Alzheimer's
disease, who was being fed by use of a nasogastric tube. We approved of the
decision in Lane v. Candura, where the Appeals Court refused to order a
competent individual to have her gangrenous leg amputated -- even though it
would have saved her life. Commissioner of Correction v. Myers. In
Matter of Hier, (1984), the Appeals Court refused to order surgery to
reimplant a G-tube, an invasive procedure.
A few States have decided cases with fact patterns similar to the one at
hand. The leading case is the New Jersey Supreme Court decision in Matter of
Conroy. In that case the court would have refused to force a patient who
had less than a year to live to endure the pain of a nasogastric tube used to
supply nutrition and hydration, (patient died while appeal pending in appellate
division), rejected the distinction between active or passive treatment and
stated that "the primary focus should be the patient's desires and experience of
pain and enjoyment -- not the type of treatment involved." In rejecting this
distinction, the New Jersey Supreme Court overturned the appellate division,
which had held that, because provision of nutrition and hydration through a
nasogastric tube was "ordinary" care, the patient must be maintained by the
nasogastric tube. The recent California case of Bouvia v. Superior
Court, reaffirmed the logic of Barber v. Superior Court, and
upheld the right of the patient, who was fully competent but hopelessly
quadriplegic and in continual pain, to end the use of a feeding tube which had
been inserted against her will.…
The Supreme Court of New Jersey has stated that the State's interest in
preserving life "generally gives way to the patient's much stronger personal
interest in directing the course of his own life." Matter of Conroy.
The Supreme Court of New Jersey did not consider the fact that a nasogastric
tube is less invasive than hemodialysis or a respirator. The court concluded
that the individual's interest in bodily integrity, which is weighed against
competing State interests, is a constant value to be considered. Both New Jersey
and California courts consider the nature of the treatment part of the calculus
of the individual's choice or judgment. Although we have recognized that the
invasiveness of the treatment sought to be terminated is an important factor to
be considered in balancing the individual's and the State's interests, we agree
with the New Jersey court's view that "the primary focus should be the patient's
desires and experience of pain and enjoyment -- not the type of treatment
involved." Matter of Conroy, we spoke with approval of the distinction
made by medical ethicists between extraordinary and ordinary care. The Supreme
Court of New Jersey in Matter of Quinlan, had considered the
distinction to have significance at that time in the medical community. We
recognize that, more recently, such a distinction has been criticized.
While we believe that the distinction between extraordinary and ordinary care
is a factor to be considered, the use of such a distinction as the sole, or
major, factor of decision tends, in a case such as this, to create a distinction
without meaning. Additionally, to state that the maintenance of nutrition and
hydration by the use of the existing G-tube is only ordinary is to ignore the
total circumstances of Brophy's situation. He cannot swallow. The judge found
that Brophy may be maintained by the use of the G-tube for "several years," the
longest recorded survival by such means extending for thirty-seven years.
Clearly, to be maintained by such artificial means over an extended period is
not only intrusive but extraordinary.
A G-tube was inserted as a means of providing time for fuller determination
of his prognosis. Insertion of the G-tube might be considered extraordinary
care, while its maintenance might be ordinary care. Thus, had the guardian
sought to preclude the surgical insertion of the G-tube, a court may well have
upheld the patient's right to refuse such surgical intervention to prolong his
life. Just as the distinction between extraordinary and ordinary arguably
obscures the real issue, so, too, the distinction between withholding and
withdrawing treatment has no moral significance. "Moreover, from a policy
standpoint, it might well be unwise to forbid persons from discontinuing a
treatment under circumstances in which the treatment could permissibly be
withheld. Such a rule could discourage families and doctors from even attempting
certain types of care and could thereby force them into hasty and premature
decisions to allow a patient to die." Matter of Conroy.
Thus, we conclude that the State's interest in the preservation of life does
not overcome Brophy's right to discontinue treatment. Nor do we consider his
death to be against the State's interest in the prevention of suicide. He
suffers an "affliction," which makes him incapable of swallowing. The
discontinuance of the G-tube feedings will not be the "death producing agent"
set "in motion with the intent of causing his own death." "Prevention of suicide
is . . . an inapplicable consideration . . . . 'A death which occurs after the
removal of life sustaining systems is from natural causes, neither set in motion
nor intended by the patient.' Welfare of Colyer." Last, we conclude also that,
so long as we decline to force the hospital to participate in removing or
clamping Brophy's G-tube, there is no violation of the integrity of the medical
profession. The position we take in a case such as this is consistent with the
view of sound medical practice taken by the representative bodies of the
American Medical Association, the Massachusetts Medical Society, and that of
many ethicists and physicians. We now turn to consider briefly the position of
the defendant hospital.
The rights and duties of the hospital. The hospital argues that it has no
constitutional, statutory, or common law right to deny nutrition and hydration
to Brophy so as to bring about his death. The probate judge held that the
hospital and its medical staff "should not be compelled to withhold food and
water to a patient, contrary to its moral and ethical principles, when such
principles are recognized and accepted within a significant segment of the
medical profession and the hospital community." We agree. Neither G. L. c. 111,
§ 70E (1984 ed.), the Massachusetts patients' rights statute, the doctrine of
informed consent, nor any other provision of law requires the hospital to cease
hydration and nutrition upon request of the guardian. There is nothing in
Superintendent of Belchertown State School v. Saikewicz, and its
progeny which would justify compelling medical professionals, in a case such as
this, to take active measures which are contrary to their view of their ethical
duty toward their patients. There is substantial disagreement in the medical
community over the appropriate medical action. It would be particularly
inappropriate to force the hospital, which is willing to assist in a transfer of
the patient, to take affirmative steps to end the provision of nutrition and
hydration to him. A patient's right to refuse medical treatment does not warrant
such an unnecessary intrusion upon the hospital's ethical integrity in this
case.
Conclusion. Accordingly, we uphold that portion of the judgment
which pertains to the hospital, but set aside that portion of the judgment which
enjoins the guardian from authorizing a facility to remove or clamp Brophy's
G-tube. A new judgment is to be entered ordering the hospital to assist the
guardian in transferring the ward to a suitable facility, or to his home, where
his wishes may be effectuated, and authorizing the guardian to order such
measures as she may deem necessary and appropriate in the circumstances.
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