by Jenesse Miller
On October 10, the ACLU-NC filed an amicus brief in the California Supreme Court supporting Robert Wendland, a man on life-support, who had previously asserted his desire not to be sustained artificially by medical technology.
Robert suffered a catastrophic automobile accident in 1993, which left him in a prolonged coma. He emerged from the coma in 1995, but has remained in a minimally conscious state, from which he will not improve, from which he will not improve, unable to communicate and sustained by artificial feeding tubes. After three operations to surgically reinsert the tubes after Robert pulled them out, his wife Rose Wendland declined to give consent to a fourth surgery. She stated that Robert told her that he would never wish a prolonged existence on medical technology if her suffered a major accident.
Acting as the conservator of her husband, Robert, Rose Wendland is seeking to honor her husband’s wishes in withdrawing artificial nutrition and hydration. Robert Wendland’s mother and sister successfully challenged the this action in the trial court. The Court of Appeal reversed. The case, Wendland v. Wendland, is now before the California Supreme Court, and presents the court with an opportunity for a major constitutional decision on the right to die.
“This case is about the constitutional right to privacy,” said ACLU-NC staff attorney Margaret Crosby. “California’s right to privacy expressly protects two important freedoms: autonomy in important decisions and control of information. The right to make choices at the end of life has its roots in both of these.”
The ACLU argues that California’s revised Probate Code directs conservators to implement the wishes of incompetent patients whenever possible. “Robert’s current inability to articulate his treatment preferences does not negate his constitutional right to privacy,” explained Crosby. “The California Legislature has made it possible for a conservator to carry out the private end-of-life decisions of a loved one who is unable to personally convey those wishes.”
Although Robert Wendland’s mother and sister argued that Robert never officially recorded a desire to forgo life-sustaining treatment prior to the tragic accident that left him unable to further articulate his treatment preferences, the ACLU-NC brief cites national surveys that most people, although they think about and discuss these issues, never put those requests into writing. “Imposing such a high evidentiary burden would impede many genuine treatment desires, thereby blocking a patient’s constitutionally protected choice,” said Crosby.
Robert’s condition does not exactly mirror that of others who have won the right to terminate artificial life support: those in persistent vegetative states and those who are competent and can voice their decision. However, the ACLU argues that he still has the right to have his treatment wishes honored. Crosby pointed out that because minimally conscious patients like Robert can experience pain, suffering and feelings of humiliation, they may have even more at stake than those in vegetative states in having their directives respected.
“The ACLU recognizes the state’s interest in enacting safeguards to ensure that end-of-life choices reflect authentic wishes of the patient. But the state may not require an individual to endure a biological existence he has made clear he would find unbearable, simply to promote an abstract interest in preserving life,” said Crosby. “The key question we must ask ourselves is: is Robert Wendland a participant in his treatment, or a prisoner of technology?”
Crosby noted several safeguards that have been enacted in California to protect potentially vulnerable patients, including procedures for appointing and challenging a conservator, who must set aside personal beliefs, act as a true surrogate, seek medical advice, and involve several experts who play a role in any decision to terminate care. In Robert Wendland’s case, his treating physician, a hospital ethics committee, and an ombudsman unanimously supported Rose’s decision to honor her husband’s wishes not to artificially prolong his existence.
“Essentially this case is about the fundamental right to privacy, and the right to control one’s own body — to make private choices about how we will die, just as we make private decisions about how we will live,” concluded Crosby.
American Civil Liberties Union of Northern California
1663 Mission Street, Suite 460, San Francisco, CA 94103