1 For an analysis of the medical aspects of permanent unconsciousness, see Cranford, The Persistent Vegetative State: The Medical Reality, Hastings Center Rep., Feb.-Mar. 1988CrossRefGoogle Scholar, at 26; Council on Scientific Affairs & Council on Ethical and Judicial Affairs, American Med. Ass'n, Persistent Vegetative State and the Decision to Withdraw or Withhold Life Support, 263 J.A.M.A. 426 (1990)Google Scholar.

2 Id. (describing the dying process resulting from termination of artificial nutrition); see also By No Extraordinary Means (J. Lynn ed. 1986) (discussing legal, medical and philosophical aspects of ending artificial nutrition).

3 See, e.g., Gray v. Romeo, 697 F. Supp. 580, 583 (D.R.I. 1988); Brophy v. New Eng. Sinai Hosp., 398 Mass. 417, 429, 497 N.E.2d 626, 632 (1986) (where the hospital and medical personnel opposed a request to cease providing nutrition to a permanently unconscious patient on the basis that the requested action would be “tantamount to euthanasia“).

4 Citations to decisions in 12 states are provided in In re Drabick, 200 Cal. App. 3d 185, 189, 245 Cal. Rptr. 840, 841 n.l, cert, denied, 109 S. Ct. 399 (1988). To that list should be added Gray, McConnell v. Beverly Enters., 209 Conn. 692, 553 A.2d 596 (1989); In re Estate of Longeway, No. 67318 (111. S. Ct. Nov. 13, 1989) (Lexis, States Library, 111. file); but see Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), cert, granted, 109 S. Ct. 3240 (1989); Couture v. Couture, 48 Ohio App. 3d 208 (1989); In re Grant, 109 Wash. 2d 545, 747 P.2d 445 (1987), modified, 57 Wash. App. 37, 757 P.2d 534 (1988). Cruzan contains extensive citation of cases allowing termination of nutrition. Cruzan, 760 S.W.2d at 412 n.4.

5 See Gray, 697 F. Supp. at 580; McConnell, 209 Conn, at 692, 553 A.2d at 596; Brophy, 398 Mass. at 417, 497 N.E.2d at 626; In re Peter, 108 N.J. 365, 529 A.2d 419 (1987).

6 See Barber v. Superior Court, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983); In re Conservator of Torres, 357 N.W.2d 332 (Minn. 1984); In rejobes, 108 N.J. 394, 529 A.2d 434 (1987).

7 Kamisar, The Right to Die, 33 Mich. Law Quadrangle News 7-8 (1988)Google Scholar; see also Kamisar, Right to Die, or License to Kill?, 124 N.J.L.J. 1359 (1989)Google Scholar.

8 These sources define euthanasia as “putting to death persons suffering from incurable conditions or diseases.” See In re Grant, 109 Wash. 2d at 570, 747 P.2d at 458 (Andersen, J., dissenting in part); see also Brophy, 398 Mass. at 442, 497 N.E.2d at 640 (Nolan, J., dissenting); May, Barry, Griese, Grisez, Johnstone, Marzen, McHugh, Meilander, Siegler, & Smith, Feeding and Hydrating the Permanently Unconscious and Other Vulnerable Persons, 3 Issues L. & Med. 203, 206-07 (1987)Google Scholar [hereinafter May].

9 Brophy, 398 Mass. at 453, 497 N.E.2d at 646 (O'Connor, J., dissenting); Destro, Quality of Life Ethics and Constitutional Jurisprudence: The Demise of Natural Rights and Equal Protection for the Disabled and Incompetent, 2 J. Contemp. Health L. & Pol'y 71, 120, 126 (1986)Google Scholar; Note, Vegetative Patient's Right to Self-determination Permits Surrogate Decisionmaker to Terminate Artificial Feeding — In rejobes, 18 Seton Hall L. Rev. 458, 475 (1988)Google Scholar.

10 Kamisar, Right to Die, or License to Kill?, supra note 7, at 1368.

11 See, e.g., Brophy, 398 Mass. at 442, 497 N.E.2d at 640 (Nolan, J., dissenting); In re Grant, 109 Wash. 2d at 570-71, 747 P.2d at 458 (Andersen, J., dissenting in part); Weisbard, & Siegler, On Killing Patients with Kindness: An Appeal for Caution, in By No Extraordinary Means, supra note 2, at 108-16Google Scholar.

12 A gastrostomy is the surgical formation of an opening through the abdominal wall into the stomach permitting installation of a tube to serve for the introduction of food.

A jejunostomy is the surgical formation of an opening through the abdominal wall into the jejunum, the first two-fifths of the small intestine, permitting installation of a feeding tube.

13 See McConnell v. Beverly Enters., 209 Conn. 692, 553 A.2d 596 (1989); In re Gardner, 534 A.2d 947, 954 (Me. 1987) and authorities cited therein; Pollock, Life and Death Decisions: Who Makes Them and By What Standards﹜, 41 Rutgers L. Rev. 505, 532 (1989)Google Scholar. Note, however, that a few courts have, in response to legislative antipathy to equating artificial nutrition with other medical treatment, drawn a distinction between these forms of treatment. See cases cited supra note 4.

14 See In re Conroy, 98 N.J. 321, 373-74, 486 A.2d 1209, 1236 (1985).

15 American Med. Ass'n, Current Opinions of the Council on Ethical and Judicial Affairs § 2.18 (1986) [hereinafter Am. Current Opinions]; see ato Wanzer, Adelstein, Cranford, Hook, Federman, Moertel, Safar, Stone, Taussig, & Eys, van The Physician's Responsibility Toward Hopelessly III Patients, 310 New Eng. J. Med. 955, 958 (1984)Google Scholar [hereinafter Wanzer]; Ruark, Raffin, & the Stanford Univ. Med. Center Comm. on Ethics, Initiating and Withdrawing Life Support — Principles and Practice in Adult Medicine, 318 New Eng. J. Med. 25 (1988)Google Scholar [hereinafter Ruark]. For citations to other medical bodies which have adopted a similar posture, see McConnell, 209 Conn, at 692, 553 A.2d at 596; Brophy, 398 Mass. at 439-40, 497 N.E.2d at 638; In re Peter, 108 N.J. 365, 381-82, 529 A.2d 419, 428 (1987).

All the above sources assume that a decision to allow an incompetent patient to die will be made “in appropriate circumstances.” This means that careful decisionmaking procedures (involving consultation between and among physicians, guardians and an institutional ethics committee) will be followed. See generally Beschle, Autonomous Decisionmaking and Social Choice: Examining the “Right to Die” 77 Ky. L. J. 319, 355-65 (1989)Google Scholar; Rothenberg, Foregoing Life-Sustaining Treatment: What are the Limits in an Aging Society”), 33 St. Louis U.L.J. 575, 584-88 (1989)Google Scholar.

“Appropriate circumstances” also means that careful decisionmaking criteria will be used, usually involving best interests of the incompetent patient. Decisionmaking criteria for incompetent patients is discussed in Part III. The succeeding discussion of decisions to end artificial nutrition of permanently unconscious patients also assumes that the requisite decisionmaking processes and criteria are being followed.

In the succeeding discussion, please note also that any reference to cessation of nutrition includes cessation of hydration. Also note that mention of termination of treatment encompasses both withholding and withdrawal of treatment. This blanket clarification is offered here in order to make subsequent expression less cumbersome.

16 President's Comm'n for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 88-90 (1983) [hereinafter President's Comm'n].

17 The Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying 57-62 (1987) [hereinafter Hastings Center Guidelines].

18 See generally A. Meisel, The Right to Die §§ 11.1-.20 (1989); Alexander, Death by Directive, 28 Santa Clara L. Rev. 67 (1988)Google Scholar; Francis, The Evanescence of Living Wills, 14 J. Contemp. L. 27 (1988)Google Scholar; Gelfand, Living Will Statutes: The First Decade, 1987 Wis. L. Rev. 737Google Scholar.

19 See Francis, supra note 18, at 33-34; A. Meisel, supra note 18, at § 11.15; Note, Comparison of the Living Will Statutes of the Fifty States, 14 J. Contemp. L. 105, 121, 123-29 (1988)Google Scholar.

20 See, e.g., 1989 Ohio Legis. Serv. § 1337.13 (Baldwin) (precluding a person acting pursuant to a durable power of attorney from ending nutrition unless the death of the patient would be imminent whether or not nutrition is provided, or the nutrition could not be assimilated by the patient, or nutrition would actually shorten the patient's life).

At least one state confines the ending of nutrition for an incompetent patient (pursuant to a durable power of attorney) to a situation where the patient has previously endorsed such a course, or where nutrition will cause severe pain to the dying patient. See Or. Rev. Stat. § 127.535 (1989). Still others require nutrition where necessary for “comfort care” to a patient. See 3 Murphy's will Clauses, § C4, at 20-35 (1988). Arguably, nutrition does not promote the comfort of a permanently unconscious, hence non-sentient, patient.

21 760 S.W.2d 408 (Mo. 1988), cert, granted, 109 S. Ct. 3240 (1989). Argument was heard December 9, 1989. The Supreme Court has heard this case in order to consider whether legislative exclusion of artificial nutrition from rejectable life-preserving treatment violates constitutional protections of liberty and privacy. See infra note 26.

22 Cruzan, 760 S.W.2d at 420, 426. The living will statute was not directly implicated in the case because the patient in question had left no clear instructions. Nonetheless, the Court followed the policy reflected in the living will statute. See abo Couture v. Couture, 48 Ohio App. 3d 208 (1989). For another recent decision refusing to authorize removal of artificial nutrition from an incompetent patient in the absence of legislative approval of such a course, see In re Grant, 109 Wash. 2d 545, 747 P.2d 445 (1987), modified, 57 Wash. App. 37, 757 P.2d 534 (1988) (Durham, J., joining opinion of Andersen, J.).

23 See Alaska Stat. § 18.12.040(b) (1986); Ark. Stat. Ann. § 20-17-206(b) (Supp. 1987); Mont. Code Ann. § 50-9-202(2) (1987); Tenn. Code Ann. § 32-ll-102(a) (Supp. 1988); Vr. Stat. Ann. tit. 14, § 345 (1988); see also Uniform Rights of the Terminally Ill Act § 1(9), 9B U.L.A. 612 (West 1987).

24 See, e.g., Cal. Health & Safety Code § 7193 (West Supp. 1983); Fla. Stat. § 765.15 (Supp. 1987); Gelfand, supra note 18, at 784 n.202 (listing 29 states which provide that their living will statutes are intended to be cumulative, that is, additions to common law rights); A. Meisel, supra note 18, at § 11.4.

25 McConnell v. Beverly Enters., 209 Conn. 692, 704-05, 553 A.2d 596, 602-03 (1989).

26 Many courts have held that a patient's rejection of life-preserving medical care — even if expressed prior to the onset of a terminal condition — is protected by the constitutional rights of privacy and bodily integrity. See Gray v. Romeo, 697 F. Supp. 580 (D.R.I. 1988) and cases cited therein. Accordingly, some sources have argued that any legislative effort to exclude rejection of artificial nutrition from a patient's options would be unconstitutional. See Corbett v. D'Alessandro, 487 So. 2d 368 (Fla. Dist. Ct. App.), review denied, 492 So. 2d 1331 (1986); In re Browning, 543 So. 2d 258, 266-67 (Fla. Dist. Ct. App. 1989); Cruzan, 760 S.W.2d at 434 (Higgins, J., dissenting); Gelfand, supra note 18, at 750-51; Francis, supra note 18, at 40. Before such a conclusion about unconstitutionality may be reached, however, the courts must examine the relevant legislature's contention that there is a strong public interest in differentiating artificial nutrition from other forms of treatment.

In Cruzan, currently pending before the U.S. Supreme Court, petitioners are arguing that a permanently unconscious patient has a constitutional right to have a representative reject life-preserving nutrition even in the absence of clear-cut prior expressions by the patient. A serious question arises about a constitutional claim purportedly grounded on a patient's autonomy interest when the patient has not expressed himself or herself. See Kamisar, Right to Die, or License to Kill﹜, supra note 7, at 1359; L. Tribe, American Constitutional Law 1367-68 (2d ed. 1988).

The author asserts that an incompetent patient has a right to be treated with human dignity, and that human dignity includes implementation of a decision that the clear majority of persons would want implemented given the circumstances facing the now incompetent patient. See In re Drabick, 200 Cal. App. 3d 185, 209, 245 Cal. Rptr. 840, 855, cert, denied, 109 S. Ct. 399 (1988); cf. Tremper, Respect for Human Dignity and Minors: What the Constitution Requires, 39 Syracuse L. Rev. 1293 (1988)Google Scholar. The constitutional aspects of decisionmaking on behalf of incompetent patients are beyond the scope of this article. Presumably, they will be illuminated when Cruzan is decided.

27 In re Drabick, 200 Cal. App. 3d at 215, 245 Cal. Rptr. at 859; In re Estate of Longeway, No. 67318 (III. S. Ct. Nov. 13, 1989) (Lexis, States library, 111. file); In re Gardner, 534 A.2d 947, 952 n.3 (Me. 1987); cf. Rasmussen v. Fleming, 154 Ariz. 207, 222, 741 P.2d 674, 681 (1987); In re Colyer, 99 Wash. 2d 114, 118-119, 660 P.2d 738, 741 (1983); see also Marzden, The Uniform Rights of the Terminally III Act, I Issues L. & Med. 441, 459 (1986)Google Scholar.

28 See May, supra note 8; Kamisar, Right to Die, or License to Kill﹜, supra note 7, at 1359.

29 In re Requena, 213 N.J. Super. 475, 485, 517 A.2d 886, 892 (Ch. Div.), aff'd, 213 N.J. Super. 443, 517 A.2d 869 (App. Div. 1986).

30 See sources cited supra note 15.

31 E.g., Rasmussen, 154 Ariz, at 208, 741 P.2d at 674 (DNR order); Barber v. Superior Court, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983) (respirator); In re Spring, 380 Mass. 629, 405 N.E.2d 115 (1980) (dialysis); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977) (chemotherapy); In rejobes, 108 N.J. 394, 529 A.2d 434 (1987) (jejunostomy tube); In re Hamlin, 102 Wash. 2d 810, 689 P.2d 1372 (1984) (respirator and antibiotics).

32 See Hastings Center Guidelines, supra note 17, at 32.

33 Weisbard & Siegler, supra note 11, at 112; see also Callahan, On Feeding the Dying, Hastings Center Rep., Oct. 1983, at 22.

34 See In re Hier, 18 Mass. App. Ct. 200, 464 N.E.2d 959 (1984); In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987); In re Requena, 213 N.J. Super, at 478, 517 A.2d at 888.

35 Nevins, Perspectives of a Jewish Physician, in By No Extraordinary Means, supra note 2, at 101.

36 In re Gardner, 534 A.2d 947, 955 (Me. 1987).

37 E.g., McConnell v. Beverly Enters., 209 Conn. 692, 553 A.2d 596 (1989); Brophy v. New Eng. Sinai Hosp., 398 Mass. 417, 429, 497 N.E.2d 626, 635 (1986); In re Peter, 108 N.J. 365, 529 A.2d 419 (1987).

38 See Brody, Ethical Questions Raised by the Persistent Vegetative Patient, Hastings Center Rep., Feb. 1988, at 33, 35.

39 Brody, Response to Reader's Letter, Hastings Center Rep., Dec. 1988, at 48–49 (1988)Google Scholar.

40 See Brophy, 398 Mass. at 442, 497 N.E.2d at 640 (Nolan, J., dissenting); Destro, supra note 9, at 126; May, supra note 8.

41 760 S.W.2d 408 (Mo. 1988), cert, granted, 109 S. Ct. 3240 (1989).

42 Id. at 412; see also In re Grant, 109 Wash. 2d 545, 570, 747 P.2d 445, 458 (1987) (Andersen, J., dissenting in part), modified, 57 Wash. App. 37, 757 P.2d 534 (1988) (Durham, J., joining opinion of Andersen, J.).

43 In the same fashion, the end-state emphysema patient who succumbs following disconnection of a respirator might be deemed to die from asphyxiation caused by emphysema and not asphyxiation caused by the disconnection. See Pollock, supra note 13, at 532; see also Brock, Foregoing Life-Sustaining Food and Water: Is It Killing?, in By No Extraordinary Means, supra note 2, at 118-24. Dr. Brock's analysis of this topic is the most enlightening and convincing which the author has read.

44 See Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297 (1986); In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987); In re Requena, 213 N.J. Super. 475, 517 A.2d 886 (Ch. Div), aff'd, 213 N.J. Super. 443, 517 A.2d 869 (App. Div. 1986). On occasion, trauma to the brain can end a patient's swallowing reflex while not affecting his or her thinking capacity. See In re Rodas, No. 86PR139 (Mesa County, Colo. Probate Ct. Apr. 3, 1987).

45 “Asserting the right to refuse medical treatment is not tantamount to committing suicide.” Rasmussen v. Fleming, 154 Ariz. 207, 218, 741 P.2d 674, 685 (1987); see Bouvia, 179 Cal. App. 3d at 1144, 225 Cal. Rptr. at 306; Quinn, The Best Interests in Incompetent Patients: The Capacity for Interpersonal Relationships as a Standard for Decision Making, 76 Calif. L. Rev. 897, 905 (1988)Google Scholar and cases cited therein.

46 This position is more problematic where the patient is capable of swallowing but rejects both manual and artificial feeding. In such an instance, the patient has initiated the withcondition which has produced the medical need for artificial nutrition. The patient's initiation of a self-destructive process makes the situation closer to suicide, thereby invoking traditional policy and antipathy toward suicide. See, e.g., In re Caulk, 125 N.H. 226, 480 A.2d 93 (1984); Von Holden v. Chapman, 87 A.D.2d 66, 450 N.Y.S.2d 623 (1982). Both of these cases involve hunger strikers.

Nonetheless, there have been a few courts which have upheld a person's right to reject artificial nutrition even where the patient was capable of ingesting food and rejected manual feeding in a determined effort to die. See In re Brooks, No. 0187008591 (N.Y. Sup. Ct., Albany County June 9, 1987); In re Plaza Health and Rehab. Center, Slip. op. (N.Y. Sup. Ct., Onondaga County, Syracuse, N.Y. Feb. 2, 1984); cf. Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715 (1982). One reason to respect a patient's refusal to eat is the specter of violently forcing a person to ingest food or to receive nutrition. The ongoing need to restrain the patient and overcome his or her will is a distasteful prospect, clashing with human dignity.

47 See In re Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840, cert, denied, 109 S. Ct. 399 (1988).

48 See Tune v. Walter Reed Army Med. Hosp., 602 F. Supp. 1452 (D.D.C. 1985); In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985); In re Grant, 109 Wash. 2d 545, 555, 564, 747 P.2d 445, 451, 455 (1987), modified, 57 Wash. App. 37, 757 P.2d 534 (1988).

49 See Brock, supra note 43, at 121. Often, a Natural Death Act or living will statute specifically provides that actions taken in conformity with the act's terms will not be deemed a legal cause of death. See, e.g., N.C. Gen. Stat. § 90-322(d) (1985).

50 In re Peter, 108 N.J. 365, 382, 529 A.2d 419, 428 (1987); see also In re Estate of Longeway, No. 67318 (111. S. Ct. Nov. 13, 1989) (Lexis, States library, 111. file).

51 McConnell v. Beverly Enters., 209 Conn. 692, 717, 553 A.2d 596, 608-09 (1989) (quoting In re Requena, 213 N.J. Super. 475, 478-79, 517 A.2d 886, 888 (Ch. Div. 1986) (Healey.J., concurring)).

52 See id. at 703, 553 A.2d at 605; Gray v. Romeo, 697 F. Supp. 580, 589 (D.R.I. 1988); In re Gardner, 534 A.2d 947, 956 (Me. 1987); Delio v. Westchester County Med. Center, 129 A.D.2d 1, 11, 516 N.Y.S.2d 677, 692 (1987).

The scope of the physician's legal responsibility toward a permanently unconscious patient will be examined in detail in Part III.

53 Weisbard & Siegler, supra note 11, at 112-13.

54 Brophy v. New Eng. Sinai Hosp., 398 Mass. 417, 444, 497 N.E.2d 626, 641 (Lynch, J., dissenting); Gelfand, supra note 18, at 749.

55 See cases cited supra note 31.

56 An able argument for the position that there is no moral difference between killing and letting die is provided by Judith Thomson. J. Thomson, Rights, Restitution, and Risk 20-32 (1986); see also Kamm, Killing and Letting Die: Methodological and Substantive Issues, 64 Pac. Phil. Q. 297 (1983)Google Scholar.

57 See Cranford, supra note 1, at 31. If the patient's condition has stabilized and he or she is being artificially fed, the precise life span depends on age, natural resistance to infections and effectiveness of the cough and gag reflexes. Id.

58 In re Conroy, 98 N.J. 321, 349, 486 A.2d 1029, 1223 (1985); see Dresser, Life, Death, and Incompetent Patients: Conceptual Infirmities and Hidden Values in the Law, 28 Ariz. L. Rev. 373, 397 (1986)Google Scholar.

59 See Satz v. Perlmutter, 362 So. 2d 160 (Fla. Dist. Ct. App. 1978), aff'd, 379 So. 2d 359 (Fla. 1980); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 741-42, 370 N.E.2d 417, 425-26 (1977); In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert, denied, 429 U.S. 922 (1976).

60 This perspective is echoed in those living will statutes which confine rejection of lifesustaining medical treatment to situations where death is imminent whether or not the contemplated medical intervention is undertaken. See Mo. Ann. Stat. § 459.010(3), (6) (Vernon Supp. 1989). One survey indicates that there are eight states whose living will statutes are framed in terms of an imminent death whether or not medical treatment is employed. Gelfand, supra note 18, at 744 n.17; see also A. Meisel, supra note 18, at § 11.12. Under such statutes, a patient's previously expressed wish to refuse medical intervention receives legislative support only when an unavoidable death is imminent.

61 See generally Gray v. Romeo, 697 F. Supp. 580, 588 (D.R.I. 1988); In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987); N. Cantor, Legal Frontiers of Death and Dying 2-23 (1987).

62 Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297 (1986); In re Peter, 108 N.J. 365, 373, 529 A.2d 419, 423 (1987).

63 See In re Peter, 108 N.J. at 377, 529 A.2d at 425; Delio v. Westchester County Med. Center, 129 A.D.2d 1, 22, 516 N.Y.S.2d 677, 691 (1987). A young, potentially healthy patient might be moved by religious scruples dictating rejection of blood transfusions or other forms of life-preserving care. See Public Health Trust of Dade County v. Wons, 541 So. 2d 96 (Fla. 1989); Cantor, A Patient's Decision to Decline Life-Saving Medical Treatment: Bodily Integrity versus the Preservation of Life, 26 Rutgers L. Rev. 228 (1973)Google Scholar; Goldberg, Choosing Life After Death: Respecting Religious Beliefs and Moral Convictions in Near Death Decision, 39 Syracuse L. Rev. 1197 (1988)Google Scholar.

64 See, e.g., Bartling v. Superior Court, 163 Cal. App. 3d 186, 209 Cal. Rptr. 220 (1984); In re Farrell, 108 N.J. at 335, 529 A.2d at 404; In re Lydia Hall Hosp., 117 Misc. 2d 1124, 459 N.Y.S.2d 682 (Sup. Ct. 1982).

65 See In re Gardner, 534 A.2d 947, 955 (Me. 1987).

66 In re Requena, 213 N.J. Super. 475, 485, 517 A.2d 886, 891, aff'd, 517 A.2d 869 (1986).

67 For discussion of the problems associated with implementing a now incompetent patient's previous expressions, see In re Estate of Longeway, No. 67318 (111. S. Ct. Nov. 13, 1989) (Lexis, States library, 111. file) (Ward, J. dissenting); Beschle, supra note 15, at 339-45.

68 See In re Browning, 543 So. 2d 258, 273 (Fla. Dist. Ct. App. 1989); In re Westchester County Med. Center, 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886 (1988).

Sometimes the reliance on a patient's prior expressions is part of an effort to make a substituted judgment — reaching the same decision the patient would have reached if the patient were miraculously aware of the current medical situation. Indeed, substituted judgment becomes a difficult and problematic standard in the absence of clearcut prior expressions from the now incompetent patient. See In re Estate of Longeway, No. 67318 (111. S. Ct. Nov. 13, 1989) (Lexis, States library, 111, file); N. Cantor, supra note 61, at 63-67. Nonetheless, not all courts have been careful to restrict the exercise of substituted judgment to instances where the previously competent patient's will is discernible. See Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 470 N.E.2d 417 (1977); In re Hamlin, 102 Wash. 2d 810, 816, 689 P.2d 1372, 1376 (1984). In both of these cases, substituted judgment standards were employed in the case of persons who had been severely retarded since birth.

In New Jersey, the usual demand for “clear and convincing” evidence of the patient's will is modified where the patient is permanently unconscious. Then, the decisionmaker need only render his or her best judgment about whether the patient would want to be maintained in a permanently vegetative state. See In re Peter, 108 N.J. at 377, 529 A.2d at 425.

69 E.g., Gray v. Romeo, 697 F. Supp. 580 (D.R.I. 1988); McConnell v. Beverly Enters., 209 Conn. 692, 553 A.2d 596 (1989); Brophy v. New Eng. Sinai Hosp., 398 Mass. 417, 497 N.E.2d 626 (1986); In re Peter, 108 N.J. at 365, 529 A.2d at 419. Of course, there have been differences in the willingness of courts to find “clear and convincing” evidence. See Note, Judicial Postponement of Death Recognition: The Tragic Case of Mary O'Connor, 15 Am. J.L. & Med. 301 (1989)Google Scholar (authored by Daniel Gindes).

70 See Cruzan v. Harmon, 760 S.W.2d 408, 425 (Mo. 1988), cert, granted, 109 S. Ct. 3240 (1989); In re Grant, 109 Wash. 2d 545, 575, 747 P.2d 445, 461 (1987) (Goodloe, J., dissenting); Dresser, supra note 58, at 385. Professor Dresser contends that respecting prior wishes of now unconscious patients serves as a cover for considering the interests of family members and persons other than the patient.

N. Cantor, supra note 61, at 65.

72 See Gray, 697 F. Supp. at 585; Brophy, 398 Mass. at 432, 497 N.E.2d at 634; In re Peter, 108 N.J. at 373, 529 A.2d at 423.

73 Thompson v. Oklahoma, 108 S. Ct. 2687, 2693 n.23 (1988).

74 See, e.g., McConnell, 209 Conn, at 692, 553 A.2d at 596; Brophy, 398 Mass. at 417, 497 N.E.2d at 626; In re Gardner, 534 A.2d 947 (Me. 1987); In re Peter, 108 N.J. at 365, 529 A.2d at 419.

75 See Gray, 697 F. Supp. at 588; Brophy, 398 Mass. at 434-35, 497 N.E.2d at 635-36; Delio v. Westchester County Med. Center, 129 A.D.2d 1, 22, 516 N.Y.S.2d 677, 691 (1987). The extended potential duration of the patient's existence does not override respect for the patient's autonomy to shape medical intervention in the dying process. “The privacy that we accord medical decisions does not vary with the patient's condition or prognosis.” In re Peter, 108 N.J. at 373, 529 A.2d at 423.

76 See notes 38-52 and accompanying text.

77 See In re Drabick, 200 Cal. App. 3d 185, 215, 245 Cal. Rptr. 840, 859-60, cert, denied, 109 S. Ct. 399 (1988); In re Browning, 543 So. 2d 258, 265 (Fla. Dist. Ct. App. 1989).

As noted, where courts have relied on clear prior expressions of previously competent patients, they have tended to find that “terminal illness” or potential life expectancy do not matter. The patient's self-determination in shaping medical intervention is the overriding factor. See Brophy, 398 Mass. at 434-35, 497 N.E.2d at 635-36; In re Peter, 108 N.J. at 373-77, 529 A.2d at 423-25. There is also some chance that the limitations on patient autonomy contained in living will statutes will ultimately be deemed unconstitutional. See McConnell, 209 Conn, at 711, 553 A.2d at 606 (Healey, J., concurring); Francis, supra note 18, at 49; Gelfand, supra note 18, at 750-51.

78 E.g., Cal. Health & Safety Code § 7187(f) (Deering 1989); Mo. Rev. Stat. § 459.010(6) (1988); 1989 Or. Laws 914, § 1(12).

79 See Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), cert, granted, 109 S. Ct. 3240 (1989); Idaho Code § 39-4503(3) (1988); Md. Health-Gen Code Ann. § 5-601 (1988).

80 See In re Browning, 543 So. 2d at 265; A. Meisel, supra note 18, at § 11.12; Marzden, supra note 27, at 449.

81 See Mont. Code Ann. § 50-9-102(7) (1989); Tex. Rev. Civ. Stat. Ann. art. 4590h (Vernon 1987) (amended 1989); A. Meisel, supra note 18, at § 11.12.

82 See In re Drabick, 200 Cal. App. 3d at 196, 245 Cal. Rptr. at 846; Brophy, 398 Mass. at 437-38, 497 N.E.2d at 637.

83 In a recent dissenting opinion, a New York judge observed about a permanently unconscious patient: “While she may not be terminally ill in the sense that death is imminent, she is dying because she has suffered severe injuries to her brain and body which, if nature takes its course, will result in death.” In re Westchester County Med. Center, 72 N.Y.2d 517, 545, 531 N.E.2d 607, 622, 534 N.Y.S.2d 886, 901 (1988) (Simons, J., dissenting).

84 Compare McConnell, 209 Conn, at 708, 553 A.2d at 604 (finding a permanently unconscious patient to be in a terminal condition) with Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), cert, granted, 109 S. Ct. 3240 (1989) (refusing to make such a finding) and In re Drabick, 200 Cal. App. 3d at 214-15, 245 Cal. Rptr. at 859-60 (holding that permanent unconsciousness was not a terminal condition for purposes of a natural death act but also that a terminal condition was not a prerequisite for exercise of common law rights).

85 Comment, Discontinuing Treatment of Comatose Patients Who Have Not Executed Living Wills, 19 Loyola L.A.L. Rev. 61, 81 (1985)Google Scholar. Many living will provisions refer to a situation where medical intervention “serves only to postpone the moment of death.” See Cal. Health & Safety Code § 7187(c) (Deering 1989); 1989 Texas Laws ch. 674, § 2(7); Okla. Stat. Ann. tit. 63 § 3102(4) (West 1988); Utah Code Ann. § 75-2-1103(7) (1989); VT. Stat. Ann. tit. 18 § 5252(3) (1987). The author's comments here are not applicable to the living will statutes which define a terminal condition as one in which death is imminent whether or not medical treatment is instituted. See supra note 79.

86 The wording is often “incurable or irreversible,” but the terms are to be read conjunctively. See Unif. Rights of the Terminally Ill Act § 1(9), 9B U.L.A. 612 (1987 & Supp. 1989) and comments thereto; A. Meisel, supra note 18, at § 11.12; Commissioners’ Comments to Mont. Code Ann. § 50-9-102(7) (1989).

87 But see Comments to Unif. Rights of the Terminally Ill Act § 1(9), 9B U.L.A. 612 (1987 & Supp. 1989) (indicating that neither diabetes nor severe kidney disease should be considered terminal conditions because insulin and dialysis can “reverse” the pathological conditions).

88 See supra notes 63, 74 and accompanying text.

89 “[N]o person or court should substitute its judgment as to what would be an acceptable quality of life for another.” In re Westchester County, 72 N.Y.2d at 530, 531 N.E.2d at 613, 534 N.Y.S. 2d at 892; see also Cruzan, 760 S.W.2d at 426; Delio v. Westchester County Med. Center, 129 A.D.2d 1, 21, 516 N.Y.S.2d 667, 690 (1987).

90 In re Gardner, 534 A.2d 947, 958 (Me. 1987) (Clifford, J., dissenting); see Merritt, Equality for the Elderly Incompetent: A Proposal for Dignified Death, 39 Stan. L. Rev. 689, 726-27 (1987)Google Scholar (describing the concerns expressed by opponents of using “quality of life” factors in the context of incompetent patients); Burt, The Ideal of Community in the Work of the President's Commission, 6 Cardozo L. Rev. 267 (1984)Google Scholar.

91 70 N.J. 10, 355 A.2d 647, cert, denied, 429 U.S. 922 (1976).

92 Id. at 22, 355 A.2d at 653. The New Jersey court has since changed its initial antipathy toward prior statements by previously competent patients. See In re Conroy, 98 N.J. 321, 362, 486 A.2d 1209, 1230 (1985).

93 ” re Quinlan, 70 N.J. at 41-42, 355 A.2d at 664.

94 The expression derives from the Amicus Curiae Brief of the American Academy of Neurology in Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), cert, granted, 109 S. Ct. 3240 (1989).

95 See, e.g., Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987); Eichner v. Dillon, 73 A.D.2d 431, 451, 426 N.Y.S.2d 517, 543 (1980), modified, In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981); cases cited supra note 27; seeako Merritt, supra note 90, at 711.

96 See medical sources cited in In re Jobes, 108 N.J. 394, 417-18, 529 A.2d 434, 446 (1987).

97 See LA. Rev. Stat. Ann. § 40:1299.58.5 (West Supp. 1989); N.C. GEN. Stat. § 90-322 (1985); N.M. Stat. Ann. § 24-7-8.1 (1986); Or. Rev. Stat. § 97.083 (1986); see also Ark. Stat. Ann. § 20-17-214 (1988).

98 Child Abuse Amendments of 1984, Pub. L. No. 98-457, §§ 121, 128(b), 98 Stat. 1749, 1755 (1984).

99 See, e.g., Smith, Legal Recognition of Neo-cortkal Death, 71 Cornell L. Rev. 850 (1986)Google Scholar; Fletcher, Indicators of Humanhood: A Tentative Profile of Man, Hastings Center Rep., Nov. 1972, at 1; see also Eichner, 73 A.D.2d at 465-66, 426 N.Y.S.2d at 543 (1980).

100 pora critical discussion of this thesis, see Skegg, Irreversibly Comatose Individuals: “Alive or Dead?”, 33 Cambridge L.J. 130 (1974)Google Scholar.

101 See Wikler, Not Dead, Not Dying? Ethical Categories and Presistent Vegetative State, Hastings Center Rep., Feb.-Mar. 1988, at 41.

102 This was apparently the approach taken in In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert, denied, 429 U.S. 922 (1976); see also In re Estate of Longeway, No. 67318 (111. S. Ct. Nov. 13, 1989) (Lexis, States library, 111. file).

103 See Weber, Substituted Judgment Doctrine: A Critical Analysis, 1 Issues L. & Med. 131, 137 (1985)Google Scholar; Note, supra note 69, at 313.

104 Rasmussen v. Fleming, 154 Ariz. 207, 222, 741 P.2d 674, 689 (1987); In re Drabick, 200 Cal. App. 3d 185, 218, 245 Cal. Rptr. 840, 861, cert, denied, 109 S. Ct. 399 (1988); In re Conservator of Torres, 357 N.W.2d 332, 337 (Minn. 1989); In rejobes, 108 N.J. 394, 449-50, 529 A.2d 434, 462 (1987) (Pollock, J., concurring); In re Grant, 109 Wash. 2d 545, 556, 747 P.2d 445, 451 (1987); see generally Rhoden, Litigating Life and Death, 102 Harv. L. Rev. 375 (1988) (criticizing the fashion in which courts apply a best interests standard); but see In re Browning, 543 So. 2d 258, 273 (Fla. Dist. Ct. App. 1989); In re Westchester County Med. Center, 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886 (1988) In both cases, the courts refused to employ a best interests standard in the absence of prior instructions from the incompetent patient.

105 See Note, supra note 9, at 477 (citing the amicus curiae brief of the American College of Physicians, New Jersey Chapter, in In re Jobes, 108 N.J. at 394, 529 A.2d at 434); see also Cranford, supra note 1, at 31.

106 See Rasmussen, 154 Ariz, at 222, 741 P.2d at 689; In re Jobes 108 N.J. at 450, 529 A.2d at 463 (Pollock, J., concurring); In re Peter, 108 N.J. 365, 374, 529 A.2d 419, 424 (1987); In re Hamlin, 102 Wash. 2d 810, 815, 689 P.2d 1372, 1376 (1984); see also Rhoden, supra note 104, at 398-402 (stressing the absence of interest of a permanently unconscious patient); Merritt, supra note 90, at 711.

107 See Dresser, supra note 58, at 384.

108 President's Comm'n, supra note 16, at 135, 183; see also Hastings Center Guidelines, supra note 17, at 28-29.

109 In re Conservator of Torres, 357 N.W.2d at 339; see Comment, Euthanasia in Maryland: The Right to Die With Dignity?, 5 J. Comtemp. Health L. & Pol'y 297, 308 (1989)Google Scholar.

110 Some potential for manipulating the fates of incompetent patients exists where altruism is attributed to the patient without foundation in the patient's statements or character. Altruism might be extended to include considerations other than family members’ suffering. The costs of maintaining a permanently comatose patient can be considerable. See Cranford, supra note 1, at 31-32 (indicating that costs can run between $1500 and $10,000 per month). One can make a claim that distributive justice dictates diverting these sums to patient populations who can benefit more than the permanently vegetative patient. Such a position might be persuasive where resources withheld from a permanently unconscious patient were in fact diverted to alternative life-saving functions. Cf. Rosenthal, Crowding Causes Agonizing Crisis in Intensive Care, N.Y. Times, Aug. 22, 1989, at Cl, col. 6 (reporting on a practice of shifting hopelessly ill patients out of overcrowded intensive care units in order to make room for salvageable patients). However, under current financing arrangements, there is absolutely no assurance that resources saved would in fact be allocated in such a manner. Without such assurances, there is little point in even suggesting fiscal savings as a basis for withdrawing life support from patients in a persistent vegetative state. See Dresser, supra note 58, at 401; Hastings Center Guidelines, supra note 17, at 120-22. At the same time, fiscal resources are not unlimited and it is conceivable that some day public and private insurers will discontinue payments on behalf of permanently unconscious patients. Moreover, some physicians in fact urge consideration of the drain on family resources when treatment is extended to hopelessly ill, incompetent patients. See Wanzer, supra note 15, at 957.

111 See In re Gardner, 534 A.2d 947, 953 (Me. 1987); In re Jobes, 108 N.J. 394, 442-43, 529 A.2d 434, 459 (1987) (Handler, J., concurring).

112 See Rasmussen v. Fleming, 154 Ariz. 207, 222, 741 P.2d 674, 689 (1987); In re Grant, 109 Wash. 2d 545, 556, 747 P.2d 445, 451 (1987); Merritt, supra note 90, at 735; but see In re O'Brien, 135 Misc. 2d 1076, 1079, 517 N.Y.S.2d 346, 348 (Sup. Ct. 1986) (“I am sure … that the disabling stroke and the force feeding are painful and humiliating and demeaning to the dignity of a once proud and vibrant human being. Pain, humiliation and indignity do not of themselves warrant the cessation of life.“).

113 See Am. Current Opinions, supra note 15; Ruark, supra note 15, at 28.

114 See In re Grady, 85 N.J. 235, 426 A.2d 467 (1981); In re Doe, 533 A.2d 523 (R.I. 1987); Canadian Institute of Law Research & Reform, Report No. 6, Sterilization Decisions: Minors and Mentally Incompetent Adults 89-92 (Mar. 1988).

115 If an incompetent patient retains some level of feeling or comprehension, it is easier to assess suffering and to weigh the benefits and detriments from life-preserving treatment according to a best interests test.

116 In re Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840 (1988); Eichner v. Dillon, 73 A.D.2d 431, 451, 426 N.Y.S.2d 517, 542-43 (1980). Because persons generally choose to act in their own best interests, following the course which would be chosen by a clear majority also tends to reassure that the particular decision is in the incompetent patient's “best interests.“

117 See sources cited supra note 106.

118 If there are factors in the background of the individual patient which would indicate that the patient would not choose the same course as the clear majority of persons, this might afford a legitimate basis for not choosing that course on the patient's behalf. For example, a strong religious precept might dictate a course different from that which would be chosen by the majority of people. This approach is, however, problematic. Not every member of a subculture subscribes to that subculture's dogma, at least not in its entirety. Where that dogma deviates from what most people view as humane and beneficial, the patient should not be bound by that dogma unless he or she has firmly subscribed to the tenets in issue.

119 See, e.g.. Dresser, supra note 58, at 387.

120 This assumes that medical science has the tools to accurately diagnose PVS, and that instances like that of Carrie Coons are aberrational. See Steinbock, Recovery from Persistent Vegetative State?: The Case of Carrie Coons, Hastings Center Rep., July-Aug. 1989, at 14, 15CrossRefGoogle Scholar.

121 But see supra note 118.

122 In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985); Rhoden, supra note 104, at 403-19.

123 See Rhoden, supra note 104, at 403-04, 419 (concerning the difficulty of measuring the interests of seriously incompetent persons); see also Cantor, Conroy, Best Interests, and the Handling of Dying Patients, 37 Rutgers L. Rev. 543, 568-69 (1985)Google Scholar.

124 See, e.g.. In re Conroy, 98 N.J. at 32, 486 A.2d at 1209; In re Westchester County Med. Center, 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886 (1988); In re Beth Israel Med. Center, 136 Misc. 2d 931, 519 N.Y.S.2d 511 (Sup. Ct. 1987).

125 In re Clark, 210 N.J. Super. 548, 510 A.2d 136 (Ch. Div. 1986).

126 Id. at 566, 510 A.2d at 146.

127 Cf. In re Beth Israel, 136 Misc. 2d at 941-42, N.Y.S.2d at 518 (where a New York court refused to order an amputation for a patient in a condition similar to Mr. Clark who had developed gangrene as a result of a blood clot in a leg).

128 This was the allegation made in an amicus brief submitted on behalf of pro-life nurses in a recent New Jersey case dealing with cessation of artificial nutrition to a permanently unconscious patient. See Note, supra note 9, at 475. For comparable expressions of concern for the fate of vulnerable incompetent people under “quality of life” standards, see Brophy v. New Eng. Sinai Hosp., 398 Mass. 417, 448-52, 497 N.E.2d 626, 643-45 (1986) (O'Connor, J., dissenting); In re Grant, 109 Wash. 2d 545, 579-80, 747 P.2d 445, 463 (1987) (Goodloe, J., dissenting).

129 See Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266, cert, denied, 454 U.S. 858 (1981) (examples of courts wrestling with medical decisions for never competent, severely retarded patients).

130 See Merritt, supra note 90, at 734-35.

131 See id. at 731.

132 In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985).

133 In re Peter, 108 N.J. 365, 372, 529 A.2d 419, 424-25 (1987). The court reasoned that permanent unconsciousness is sui generis with regard to the best interests analysis normally employed in the absence of prior expressions. Life expectancy and best interests are relevant where the patient might be deriving some benefit from existence. But, according to the court, a permanently unconscious patient can derive no benefit from further existence. Id.

134 Another court has suggested that withdrawal of life support in the absence of the patient's prior instructions ought to be confined to a patient in “an advanced stage” of a terminal and incurable illness. In re Grant, 109 Wash. 2d 545, 556, 747 P.2d 445, 451 (1987). It is not clear whether the intent of the language “advanced stage” was to impose a life expectancy limitation and, if so, whether the time period is longer or shorter than a year. See also In re Beth Israel Med. Center, 136 Misc. 2d 931, 940, 519 N.Y.S.2d 511, 517 (Sup. Ct. 1987).

135 A question naturally arises about routine maladies, such as minor illnesses or infections, which are not ordinarily life-threatening because they are readily treatable with antibiotics and the like. If a patient has reached a status which qualifies as demeaning, should even routine medical care be withheld? Should a scratch not be treated with disinfectant in order to permit sepsis to develop and to create a life-threatening condition?

A competent patient would be entitled to reject even routine and simplistic medical procedures in the face of a naturally occurring disease process. (The process must be a natural occurrence because the patient does not have a right to maim himself with self-inflicted wounds). Does it promote the humanity of a now incompetent (but previously competent) patient to recognize a decisionmaker's option to reject even routine medical treatment on behalf of the “demeaned” patient? The answer is probably yes, on condition that a broad consensus of competent persons would want to have routine treatment omitted upon reaching the status which the incompetent patient in question has now reached.

The problem surfaces when “intervening” illness afflicts a patient who is undergoing a protracted dying process. The patient might be suffering from advance kidney disease, Alzheimer's disease or AIDS. If pneumonia develops and is treatable, must antibiotics be administered? In the context of advanced stages of an unavoidable dying process, the current medical response seems to be negative. See Wanzer, supra note 15, at 955. The author suggests that the answer ought similarly to be negative once a patient has reached what the clear majority of persons would consider a demeaning existence, even if the final stages of the underlying disease process have not yet been reached. Of course, in each case the precise effects of non-treatment must be considered. These include possible pain, discomfort or indignity accompanying non-treatment of the intervening illness. The best interests of the patient must always serve as a guide along with concern about indignity.

136 As a precautionary measure to help ensure that a dignity of the patient standard is not abused, the author might ultimately be persuaded to endorse the arrangement imposed by the New Jersey Supreme Court. See supra notes 132-33 and accompanying text. That is, a representative's uninstructed decision to withdraw life-preserving treatment from an incompetent patient would be permissible only if the patient is facing unpreventable death within a year. Permanent unconsciousness would then be an exception to this rule.

137 The author's effort to employ “humane care” as a guideline, and to measure it by what most competent persons would want in the circumstances facing the patient in question, is not far removed from the approach adopted by the Hastings Center Guidelines. Those guidelines address the situation of “a patient who has an illness or disabling condition that is severe and irreversible.” Hastings Center Guidelines, supra note 17, at 28-29. They suggest using a “reasonable person” standard to answer the question whether the patient's life is so devoid of opportunities to achieve satisfaction, or full of pain or suffering with no corresponding benefits, as to dictate termination of treatment. This article suggests that the questions involved should include whether the patient's status is so demeaning that most persons would seek for themselves withdrawal of life-preserving medical intervention.

Professor Rhoden's approach seeks a determination of when “a person's life is of such minimal quality that preserving it is optional [in the hands of an appropriate decisionmaker].” Rhoden, supra note 104, at 441. She stresses threshold capacity to interact with other human beings or to experience the patient's environment. Id. at 437, 442. The approach proposed in this article would also include focus on sufficient mentation to interact with the environment. But this would be one element of human dignity among many others instituto be considered in determining whether the patient's overall status would qualify as demeaning according to a clear majority of competent persons thinking about their own medical futures.

138 See generally N. Cantor, supra note 61, at 105-23; A. Meisel, supra note 18, at §§6.1 - .9.

139 See, e.g., In re Browning, 543 So. 2d 258, 270 (Fla. Dist. Ct. App. 1989). Where the patient is in a setting other than a hospital, such as a nursing home, different procedural requirements may be imposed on withdrawal of life-preserving care. These might include independent medical confirmation of the patient's dismal prognosis and mandatory consultation with an institutional ethics committee or with a representative of a state agency charged with protecting the interests of incompetent patients. Of course, in the event of disagreements among the decisionmaking parties over the appropriate course, judicial resolution is available.

140 See Wanzer, Federman, Adelstein, Cassel, Cassem, Cranford, Hook, Lo, Moertel, Safar, Stone, & Eys, van The Physician's Responsibility Toward Hopelessly III Patients — A Second Look, 320 New Eng. J. Med. 845-46 (1989)Google Scholar [hereinafter Wanzer & Federman]; Alexander, supra note 18, at 102; but see Rosenthal, Crowding Causes Agonizing Crisis in Intensive Care, N.Y. Times, Aug. 22, 1989, at Cl, col. 6 (commenting on the phenomenon that crowded conditions in New York intensive care units have necessitated a de facto triage, with hopelessly ill patients being moved to make way for gravely sick but salvageable patients).

141 For discussion of the utility of ethics committees, see Note, supra note 69, at 324-26.

142 As used in this article, active euthanasia means the introduction of external means, such as poisons, to end the patient's life.

143 See supra note 13.

144 Some commentators maintain that a right to reject medical intervention logically leads to a right of euthanasia. See Molenda, Active Euthanasia: Can It Be Justified?, 24 Tulsa L.J. 165, 183 (1988)Google Scholar; Stone, The Right to Die: New Problems for Law, Medicine and Psychiatry, 37 Emory LJ. 627, 641 (1988)Google Scholar.

145 Proponents of active euthanasia also point to the anomaly which exists under the current legal framework making voluntary active euthanasia a criminal act. While active euthanasia is clearly an illegal homicide, the expectable legal consequences rarely ensue. Prosecutors tend not to press the case, juries tend not to indict or to convict and judges tend to impose light sentences on the rare person who is tried and convicted for euthanasia. See Smith, All's Well that Ends Well: Toward a Policy of Assisted Rational Suicide or Merely Enlightened Self-Determinationf, 22 U. C. DAVIS L. Rev. 275, 352-53 (1989)Google Scholar. The discrepancy between the harsh statutory condemnation of euthanasia and the actual tolerance of such conduct is deemed by some to be inconsistent with the salutary object of cultivating consistent, even-handed administration of the legal system. This line of reasoning provides an additional basis for reconsidering the current legal status of active euthanasia.

Of course, not everyone agrees that this divergence between the written law and its administration is undesirable. It is arguable that the current legal framework properly discourages “frivolous” mercy killing, while showing desirable leniency toward persons who act in truly dire situations. See Gelfand, Euthanasia and the Terminally III Patient, 63 Nev. L. Rev. 741, 756-57, 770-71 (1984)Google Scholar.

146 Professor Rachels — a major proponent of permitting active euthanasia — acknowledges that the impetus will be strong to extend the practice to some cases of incompetent patients. He calls the class of persons affected “non-voluntary patients,” those who are incompetent and have never expressed their own desires regarding terminal treatment. Professor Rachels points out that this does not import involuntary euthanasia — euthanasia of patients who have expressed a desire to continue living under the circumstances reached. J. Rachels, The End of Life 180 (1986).

The author is not suggesting that active euthanasia could never be confined to voluntary cases. There is, however, some impetus to extend the practice beyond competent patients so that a discussion of active euthanasia is not out of place in the context of permanently unconscious patients.

147 The author has considerable qualms about using the interests of persons surrounding the patient as part of the criteria for shaping care of a terminal patient. See N. Cantor, supra note 61, at 87-91. Nonetheless, there are some sources which accept this element as part of the relevant decisionmaking criteria. See, e.g., President's Comm'n, supra note 16, at 183.

148 See J. Rachels, supra note 146, at 106-28; J. Thomson, supra note 56; Kamm, supra note 56, at 297-312.

149 For an example of protective machinery designed to prevent abuse of active (voluntary) euthanasia, see Note, Voluntary Active Euthanasia for the Terminally III and the Constitutional Right to Privacy, 69 Cornell L. Rev. 363, 380-81 (1984)Google Scholar. Such machinery could be adapted to the situation of an incompetent patient.

150 See J. Rachels, supra note 146, at 183; Gelfand, supra note 145, at 761.

151 See supra pp. 536-46.

152 See World Medical Organization, Declaration of Madrid (1987). The Declaration endorses permitting a natural dying process to transpire where the patient has indicated that such a course is desired. The Declaration does not speak to the issue of terminating lifepreserving care for the incompetent patient.

153 See Wanzer & Federman, supra note 140, at 849; Hastings Center Guidelines, supra note 17, at 128.

154 See Callahan, Can We Return Death to Disease?, Hastings Center Rep., Jan.-Feb. 1989, at 4,6.

155 Ruark, supra note 15, at 28.

156 A glaring deviation from this pattern is found in the practice of some physicians who administer pain killing narcotics to suffering, dying patients even though the injection hastens the patient's death in some measure. See Hastings Center Guidelines, supra note 17, at 128-29; Wanzer & Federman, supra note 140, at 847. The practice is defended because its exclusive purpose is to relieve pain and suffering, though it admittedly “contributes” to the patient's death. Id. The dosage is geared to relieving pain, and practitioners refrain from administering a massive dose which would immediately cause death. Koop, The Challenge of Definition, Hastings Center Rep., Jan.-Feb. 1989, at 3. The consent of the patient (if competent) or patient's guardian is presumably secured.

From a legal perspective, this practice is of dubious legality. Though the actor's motive may be pure — relief of suffering — an altruistic motive does not normally permit an act which measurably hastens a patient's death. Nor does the consent of a patient or patient's representative provide a legal defense to homicide. The practice proceeds unobstructed because it is difficult to prove that the narcotic was a proximate cause of the patient's death, and because prosecutors are tolerant toward the claim that the double effect (relief of pain while only somewhat accelerating an unavoidable death) excuses the physician's conduct.

157 For a thoughtful commentary on how and why the courts have refrained from interfering in the patterns of modern medical practice surrounding terminal patients, see Wolf, Holding the Line on Euthanasia, Hastings Center Rep., Jan.-Feb. 1989, at 13.

158 Courts have accepted withdrawal of life-preserving care from incompetent patients so long as the conduct is consistent with certain criteria and processes. See generally Pollock, supra note 13, at 536; Comment, supra note 109, at 297.

159 See Koop, supra note 156, at 2, 3; Comment, supra note 85, at 67 n.32 (describing the Catholic position regarding use of extraordinary medical means). As early as 1957, Pope Pius XII saw discontinuance of a PVS patient's respirator as a licit act to end extraordinary medical intervention. See Note, The Right to Voluntary Euthanasia, 10 Whittier L. Rev. 489, 524 (1988)Google Scholar.

160 See Fenigsen, A Case Against Dutch Euthanasia, Hastings Center Rep., Jan.-Feb. 1989, at 22, 27; Hastings Center Guidelines, supra note 17, at 129; Wanzer & Federman, supra note 140; but see Smith, supra note 145, at 341-42 (arguing that analgesics and withdrawal of life-preserving medical intervention are inadequate substitutes for active euthanasia).

161 See In re Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840, cert, denied, 109 S. Ct. 399 (1988); Corbett v. D'Alessandro, 487 So. 2d 368 (Fla. Dist. Ct. App.), review denied, 492 So. 2d 1331 (Fla. 1986); Brophy v. New England Sinai Hosp., 398 Mass. 417, 497 N.E.2d 626 (1986); In re Peter, 108 N.J. 365, 529 A.2d 419 (1987).

162 See Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), cert, granted, 109 S. Ct. 3240 (1989); In re Westchester County Med. Center, 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886 (1988); Couture v. Couture, 48 Ohio App. 3d 208 (1989).