Report to General Practice Section, State Bar of Michigan

From: Clark S. Davis, Counsel Member
Date: 1-17-96
Subject: In re Martin, 450 Mich. 204, Decided August 22, 1995

Facts

Mr. Martin sustained debilitating injuries in a 1987 automobile accident, the most significant being a bilateral hemisphere closed head injury. His life was being sustained in a hospital by the nutritive support provided by a gastrostomy tube and a colostomy for defecation. He was conscious, not terminally ill, and not in a persistent vegetative state.

Nevertheless, he suffered from a mixture of cognitive function and communication impairments that made it impossible to evaluate the extent of his cognitive deficits. It was the general consensus among the medical experts that his condition and cognitive level of functioning would not improve in the future.

His wife was his Court appointed Guardian and Conservator.

He had made no written directive stating a desire to refuse life-sustaining medical treatment under any particular circumstances.

While competent, he had made various statements at various times (i.e. while viewing or discussing movies or news reports depicting individuals no longer mentally competent, in a vegetative state, totally dependent upon nursing home care, or supported by machines with no hope of getting better) to the effect that he would rather die than be dependent on people and machines, and would not want to continue living if he were in a vegetative state.

The Guardian contacted the hospital bioethics committee which reported that withdrawal of the patient's nutritive support was both medically and ethically appropriate, but that court authorization would be required before the hospital could assist in the procedure.

The Guardian filed a petition in the probate court requesting authorization to withdraw nutritive support. The petition was opposed by the patient's mother and sister.

Held

The lower court erred in finding clear and convincing evidence of Mr. Martin's desire to refuse life-sustaining medical treatment under these specific circumstances.

Preliminary Issues

1. Does a competent person have a right to refuse life sustaining medical treatment? Yes.
2. Does this right survive incompetency? Yes.
3. May a surrogate decision maker discharge that right for a patient who is no longer able to do so for himself? Yes.

Issues Specifically Not Addressed

1. The Michigan Patient Advocacy Act. This injury occurred nearly four years before the legislation was enacted. Therefore, he never designated a Patient Advocate pursuant to the act and the court stated that it was expressing no opinion about how the Act and its provisions should be interpreted because that question was not before it. Still, practitioners ought not be surprised to see this case cited when the Act is at issue.
2. Proper decision-making standard for patients:
1. Who have never been competent
2. In a persistent vegetative state
3. Experiencing great paid
4. Terminally ill

"If a patient has any of these conditions, or ailments of a similar nature, a more objective approach may be necessary and appropriate."

Major Issue

1. How does the surrogate effectuate the incompetent patient's decision? By following the Substituted Judgment Standard which is based upon the patient's right to self-determination. The Best Interest Standard, based on an Objective Standard grounded in the state's parens patriae power, is rejected.

2. What evidentiary standard of proof must the statements of the patient meet before the surrogate is allowed to effectuate them? The Clear and Convincing evidence standard.

Implications For

1. The Michigan Patient Advocacy Act.
2. Choice of language in written declarations of intent.
3. The widely distributed Designation of Patient Advocate Form co-authored by the State Bar of Michigan, Michigan State Medical Society, Michigan Hospital Association, and Michigan Association of Osteopathic Physicians & Surgeons, Inc.
4. Revisiting the Best Interest Standard at some point in the future.

While the Substituted Judgment Standard has certain objective components, it is substantially subjective. Through this standard, the surrogate attempts to ascertain, with as much specificity as possible, the decision the incompetent patient would make if he were competent to do so.

The surrogate first determines whether the patient, while, competent, explicitly stated his intent regarding the type of medical treatment in question.

Where there is no explicit evidence of what the patient would choose, the surrogate may still decide to terminate treatment on the basis of evidence of the patient's "value system" through an assessment of the patient's behavior during the time he was competent.

This standard allows the surrogate to withhold life-sustaining treatment from an incompetent patients ". . . 'when it is clear that the particular patient would have refused the treatment under the circumstances involved.'" (Adopting the language of In re Conroy, 98 NJ 321; 486 A2d 1209 (1985).)

The question is not what a reasonable or average person would have chosen to do under the circumstances, but what the particular patient would have done if able to choose for himself. The statements of the patient, made while competent, must illustrate ". . . 'a firm and settled commitment to the termination of life supports under the circumstances like those presented"'. (Quoting In re Westchester Co. Medical Center, 72 NY2d 517; 534 NYS2d 886; 531 NE2d 607 (1988).)

The Clear and Convincing Evidence Standard will be used by the courts to determine whether a patient's statements, made while competent, indicate a desire to have treatment withheld.

The court notes that this standard is in harmony with the Patient Advocate Act which also requires clear and convincing evidence that the patient would allow treatment to be withheld if such a decision would lead to the patient's death.

The court also clearly states that a written directive provides the most concrete evidence. Even in the case of written directives, however, the predominant factor sought is a "prior directive in which the patient addresses the situations in which the patient would prefer that medical intervention cease."

The weight accorded prior oral statements depends on:

1. Remoteness
2. Consistency
3. Specificity
4. Solemnity of the statement

The court offers this guidance: "only when the patient's prior statements clearly illustrate a serious, well thought out, consistent decision to refuse treatment under these exact circumstances, or circumstances highly similar to the current situation, should treatment be refused or withdrawn."

Summary

Where the surrogate decisionmaker can establish by clear and convincing evidence that the conscious incapacitated individual, while competent, made a statement of his desire to refuse life-sustaining medical treatment under these circumstances, then the surrogate must be allowed to effectuate the incapacitated individual's expressed preference.

Courts will not authorize the removal of life-sustaining medical treatment in the absence of clear and convincing evidence of the conscious incapacitated individual's preinjury statement expressing his decision to refuse life-sustaining medical treatment under the present circumstances.