THE POWER NOT TO CONSENT TO MEDICAL CARE - MAGiC JOURNAL, JULY 1997. By Brent Wm. Primus, J.D.

Minn. Stat. § 525.56, Subd. 3 (4)(a) reads as follows:

"The power to give any necessary consent to enable the ward or conservatee to receive necessary medical or other professional care, counsel, treatment or service, except that no guardian or conservator may give consent for psychosurgery, electroshock, sterilization, or experimental treatment of any kind unless the procedure is first approved by order of the court as provided in this clause. The guardian or conservator shall not consent to any medical care for the ward or conservatee which violates the known conscientious, religious, or moral belief of the ward or conservatee."

"The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment." Cruzan v. Director, Missouri Department of Health, 497 US 261, 110 S.Ct. 2841 (1990). In the Cruzan case the US Supreme Court was reviewing Missouri's state laws regarding the non-provision of medical services to an incapacitated person. Missouri required a showing by "clear and convincing evidence" as to what the incapacitated person's decision would have been under the circumstances. Such an approach is called the "substituted judgement" standard. In Cruzan the Supreme Court found no constitutional infirmity with Missouri law. Accordingly, the petitioning parents of a young women in a persistent vegetative state could not require the hospital to withdraw artificial nutrition and hydration.

Minnesota has adopted a different standard known as the "best interests" standard. The case of In Re the Conservatorship of Torres, 357 N.W. 2d. 332 (Minn. 1984) is our lead case in this area. In Torres the court rejected the argument of the court-appointed attorney for the conservatee that, as a matter of law, the "best interests" of a conservatee cannot be served by the removal of life supports when doing so may result in the conservatee's death (Torres at 338). Instead, the Court stated:

We agree with respondent's contention that Minn.Stat. § 525.56, subd. 3 (4)(a) (1982), grants the guardian greater authority over the medical care of the conservatee than simply the power to consent to medical care. The provision in (4)(a) is qualified by its lead-in sentence which states that the "duties and powers *** which the court may grant to a conservator of the person include, but are not limited to" those specifically described. Id., subd. 3. Thus, we believe that if the conservatee's best interests are no longer served by the maintenance of life supports, the probate court may empower the conservator to order their removal despite the absence of a specific provision in Minn.Stat. § 525.56 (1982) which authorizes the court to do so. These same powers may be granted to a conservator by the court. Id., subd. 3 (1982).

The significance of the last sentence quoted above is that the Court is saying that it is not necessary for a conservator to go to Court to obtain an Order each and every time this situation arises. It specifically so stated in Footnote 4 (Torres at 341). In other words, the appointment of a conservator with the statutory power enumerated in Minn.Stat. § 525.56, subd. 3 (4)(a) is sufficient authority for a conservator to refuse to consent to any medical treatment if in the best interests of the conservatee. It should be noted as an aside that three of our Minnesota Supreme Court Justices concurred in the general holding of Torres, but specially stated that they felt that there should be a Court Order in each case with the judicial review that this would entail.

The Court in Torres went on to state : By guaranteeing the right of a patient to refuse medical treatment, Minn.Stat. §144.651, subd. 12 (Supp.1983), the Minnesota Legislature has recognized that a patient's "best interests" may not be served by continued medical treatment. Expressing a similar regard for the rights of an incompetent, the Legislature has prohibited a conservator from consenting to medical care which would violate the known conscientious, religious, or moral beliefs of the conservatee. Minn.Stat. § 525.56, subd. 3 (4)(a) (1982). Thus, simply equating the continued physical existence of a conservatee, who has no chance for recovery, with the conservatee's "best interests" appears contrary not only to the weight of medical authority, but also to those indications of legislative opinion which exist. At a minimum, any determination of a conservatee's "best interests" must involve some consideration of the conservatee's wishes.

Thus, under the "best interests" standard, the beliefs of the incapacitated person are only one factor to consider as opposed to being the controlling factor under a "substituted judgment" standard. The consensus of the case law would appear to be that the primary factor to consider is the incapacitated person's quality of life and, in particular, the degree of pain or suffering which would have to be endured by the incapacitated person when the consenting of medical treatment would prolong the person's life.

One must be careful to distinguish between a person's "quality of life" and a person's "value of life". The New Jersey case of In the Matter of Conroy, 486 A.2d 1209 (N.J. 1985) contains a thorough review and analysis of these issues as did Cruzan and Torres. As part of its discussion the Court stated "....we expressly decline to authorize decision making based on assessments of the personal worth or social utility of another's life, or the value of that life to others. We do not believe that it would be appropriate for a court to designate a person with the authority to determine that someone else's life is not worth living simply because, to that person, the patient's "quality of life" or value to society seems negligible. The mere fact that a patient's functioning is limited or his prognosis dim does not mean that he is not enjoying what remains of his life or that it is in his best interests to die".

The New Jersey court made reference to the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment (1983). This report broadly defined a person's best interests to "take into account such factors as the relief of suffering, the preservation or restoration of functioning, and the quality as well as the extent of life sustained". The Conroy Court then went on to state that "more wide ranging powers to make decisions about other peoples lives in our view would create an intolerable risk for socially isolated defenseless people suffering from physical or mental handicaps." Put another way, the "best interests" standard does not authorize an "assisted suicide".

One other general observation is that a conservator must be free of any conflicts of interest when making decisions regarding the refusal to consent to medical treatment. While a material financial conflict is unlikely to arise in the instance of a professional conservator, when a relative of the conservatee is acting as a conservator there is a definite potential for such a conflict. Specifically, one could imagine many scenarios where the death of the conservatee prior to the birth of another relative could materially effect the timing and distribution of one or more trusts.

The above comments are obviously a very truncated discussion of a very complicated issue. Accordingly, the three cases discussed above, that is, Cruzan, Torres, and Conroy are highly recommended to anyone, whether lawyer or lay person, interested in this subject. All three of these cases include numerous references to medical and ethical studies, as well as surveying the statutory and case law.

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