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In re Conroy

Decided: January 17, 1985.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 190 N.J. Super. 453 (1983).

For reversal -- Chief Justice Wilentz and Justices Clifford, Schreiber, Pollock, O'Hern and Garibaldi. Dissenting in part; concurring in part -- Justice Handler. The opinion of the Court was delivered by Schreiber, J. Handler, J., concurring in part and dissenting in part.


At issue here are the circumstances under which life-sustaining treatment may be withheld or withdrawn from incompetent, institutionalized, elderly patients with severe and permanent mental and physical impairments and a limited life expectancy.

Plaintiff, Thomas C. Whittemore, nephew and guardian of Claire Conroy, an incompetent, sought permission to remove a nasogastric feeding tube, the primary conduit for nutrients, from his ward, an eighty-four-year-old bedridden woman with serious and irreversible physical and mental impairments who resided in a nursing home. John J. DeLaney, Jr., Conroy's guardian ad litem, opposed the guardian's petition. The trial

court granted the guardian permission to remove the tube, and the Appellate Division reversed.


In 1979 Claire Conroy, who was suffering from an organic brain syndrome that manifested itself in her exhibiting periodic confusion, was adjudicated an incompetent, and plaintiff, her nephew, was appointed her guardian. The guardian had Ms. Conroy placed in the Parkview Nursing Home, a small nursing facility with thirty beds. There she came under the care of Dr. Kazemi, a family practitioner, and Catherine Rittel, a registered nurse, who was the nursing home administrator. Upon her admission, Ms. Conroy, although confused, could converse and follow directions, was ambulatory, and was in relatively good physical condition. Thereafter, she became increasingly confused, disoriented, and physically dependent.

Ms. Conroy was hospitalized on two occasions at Clara Maas Hospital, once between July 23, 1979 and August 8, 1979, for dehydration and a urinary tract infection, and later between July 21, 1982 and November 17, 1982, for an elevated temperature and dehydration. During the latter hospitalization the diagnostic evaluation showed that Ms. Conroy had necrotic gangrenous ulcers on her left foot. Two orthopedic surgeons recommended that to save her life, her leg should be amputated. However, her nephew refused to consent to the surgery because he was confident that she would not have wanted it. Contrary to the doctors' prognosis, Ms. Conroy did not die from the gangrene.

During this second hospitalization, Dr. Kazemi observed that Ms. Conroy was not eating adequately, and therefore, on July 23, he inserted a nasogastric tube that extended from her nose through her esophagus to her stomach. Medicines and food were then given to her through this tube. On October 18, the tube was removed, and Ms. Conroy was fed by hand through her mouth for two weeks. However, she was unable to eat a

sufficient amount in this manner, and the tube was reinserted on November 3.

When Ms. Conroy was discharged from the hospital to the nursing home on November 17, 1982, the tube was left in place. It continued to be used for the same purposes thereafter. A second attempt to feed Ms. Conroy through her mouth about January, 1983 failed because Ms. Conroy was incapable of swallowing sufficient amounts of nutrients and water. According to the testimony of Dr. Kazemi, Ms. Conroy had such difficulty swallowing that even a person with great time and patience could probably not have coaxed her into absorbing enough fluids and solid food by mouth to sustain herself.

At the time of trial, Ms. Conroy was no longer ambulatory and was confined to bed, unable to move from a semi-fetal position. She suffered from arteriosclerotic heart disease, hypertension, and diabetes mellitus; her left leg was gangrenous to her knee; she had several necrotic decubitus ulcers (bed sores) on her left foot, leg, and hip; an eye problem required irrigation; she had a urinary catheter in place and could not control her bowels; she could not speak; and her ability to swallow was very limited. On the other hand, she interacted with her environment in some limited ways: she could move her head, neck, hands, and arms to a minor extent; she was able to scratch herself, and had pulled at her bandages, tube, and catheter; she moaned occasionally when moved or fed through the tube, or when her bandages were changed; her eyes sometimes followed individuals in the room; her facial expressions were different when she was awake from when she was asleep; and she smiled on occasion when her hair was combed, or when she received a comforting rub.

Dr. Kazemi and Dr. Davidoff, a specialist in internal medicine who observed Ms. Conroy before testifying as an expert on behalf of the guardian, testified that Ms. Conroy was not brain dead, comatose, or in a chronic vegetative state. They stated, however, that her intellectual capacity was very limited, and

that her mental condition probably would never improve. Dr. Davidoff characterized her as awake, but said that she was severely demented, was unable to respond to verbal stimuli, and, as far as he could tell, had no higher functioning or consciousness. Dr. Kazemi, in contrast, said that although she was confused and unaware, "she responds somehow."

The medical testimony was inconclusive as to whether, or to what extent, Ms. Conroy was capable of experiencing pain. Dr. Kazemi thought that Ms. Conroy might have experienced some degree of pain from her severely contracted limbs, or that the contractures were a reaction to pain, but that she did not necessarily suffer pain from the sores on her legs. According to Dr. Davidoff, it was unclear whether Ms. Conroy's feeding tube caused her pain, and it was "an open question whether she [felt] pain" at all; however, it was possible that she was experiencing a great deal of pain. Dr. Davidoff further testified that she responded to noxious or painful stimuli by moaning. The trial court determined that the testimony of a neurologist who had examined Ms. Conroy would not be necessary, since it believed that it had sufficient evidence about her medical condition on which to base a decision.

Both doctors testified that if the nasogastric tube were removed, Ms. Conroy would die of dehydration in about a week. Dr. Davidoff believed that the resulting thirst could be painful but that Ms. Conroy would become unconscious long before she died. Dr. Kazemi concurred that such a death would be painful.

Dr. Kazemi stated that he did not think it would be acceptable medical practice to remove the tube and that he was in favor of keeping it in place. As he put it, "she's a human being and I guess she has a right to live if it's possible." Ms. Rittel, the nurse, also thought the tube should not be removed since in her view it was not an extraordinary treatment. The nursing home had taken no position on the subject.

Dr. Davidoff said that if he had been the treating physician and the case had not come to court, he would have removed the tube with the family's consent. In his opinion, although Ms. Conroy seemed to be receiving excellent care, she did not have long to live, perhaps a few months. In those circumstances, he considered nasogastric feeding an extraordinary, or optional, medical treatment, because it went "beyond the necessities of life." He analogized the nasogastric tube to a respirator that supplies oxygen and said that since Ms. Conroy was "hopelessly ill with no possibility of returning to any sort of cognitive function, in the face of possibly [ sic ] suffering taking place at the moment," he could recommend that the feeding tube be removed.

Ms. Conroy had lived a rather cloistered life. She had been employed by a cosmetics company from her teens until her retirement at age 62 or 63. She had lived in the same home from her childhood until she was placed in the nursing home, had never married, and had very few friends. She had been very close to her three sisters, all of whom had died.

Ms. Conroy's only surviving blood relative was her nephew, the guardian, Thomas Whittemore. He had known her for over fifty years, had visited her approximately once a week for four or five years prior to her commitment to the nursing home, and had continued to visit her regularly at the nursing home for some time. The record contained additional evidence about the nephew's and aunt's financial situations and the history of their relationship. Based on the details of that record, there was no question that the nephew had good intentions and had no real conflict of interest due to possible inheritance when he sought permission to remove the tube.

Mr. Whittemore testified that Ms. Conroy feared and avoided doctors and that, to the best of his knowledge, she had never visited a doctor until she became incompetent in 1979. He said that on the couple of occasions that Ms. Conroy had pneumonia, "[y]ou couldn't bring a doctor in," and his wife, a registered

nurse, would "try to get her through whatever she had." He added that once, when his wife took Ms. Conroy to the hospital emergency room, "as foggy as she was she snapped out of it, she would not sign herself in and she would have signed herself out immediately." According to the nephew, "[a]ll [Ms. Conroy and her sisters] wanted was to * * * have their bills paid and die in their own house." He also stated that he had refused to consent to the amputation of her gangrenous leg in 1982 and that he now sought removal of the nasogastric tube because, in his opinion, she would have refused the amputation and "would not have allowed [the nasogastric tube] to be inserted in the first place."

Ms. Conroy was a Roman Catholic. The Rev. Joseph Kukura, a Roman Catholic priest and an associate professor of Christian Ethics at the Immaculate Conception Seminary in Mahwah, New Jersey, testified that acceptable church teaching could be found in a document entitled "Declaration of Euthanasia" published by the Vatican Congregation for the Doctrine of the Faith, dated June 26, 1980. The test that this document espoused required a weighing of the burdens and the benefits to the patient of remaining alive with the aid of extraordinary life-sustaining medical treatment. Father Kukura said that life-sustaining procedures could be withdrawn if they were extraordinary, which he defined to embrace "all procedures, operations or other interventions which are excessively expensive, burdensome or inconvenient or which offer no hope of benefit to a patient." Here, he said, the hope of recovery and of returning to cognitive life, even with the nasogastric feeding, was not a reasonable possibility. The means of care were not adding to the value of her life, which was outweighed by the burdens of that life. He therefore considered the use of the nasogastric tube extraordinary. It was his judgment that removal of the tube would be ethical and moral, even though the ensuing period until her death would be painful.

The trial court decided to permit removal of the tube. 188 N.J. Super. 523, (Ch.Div.1983). It reasoned that the focus of

inquiry should be whether life has become impossibly and permanently burdensome to the patient. If so, the court held, prolonging life becomes pointless and perhaps cruel. It determined that removal of the tube would lead to death by starvation and dehydration within a few days, and that the death might be painful. Nevertheless, it found that Ms. Conroy's intellectual functioning had been permanently reduced to a very primative level, that her life had become impossibly and permanently burdensome, and that removal of the feeding tube should therefore be permitted.

The guardian ad litem appealed. While the appeal was pending, Ms. Conroy died with the nasogastric tube intact. Nevertheless, the Appellate Division decided to resolve the meritorious issues, finding that they were of significant public importance and that this type of case was capable of repetition but would evade review because the patients involved frequently die during litigation. 190 N.J. Super. 453, 459-60 (1983).

The Appellate Division viewed the ultimate question to be whether Claire Conroy's right of privacy outweighed the State's interest in preserving life. Id., 190 N.J. Super. at 460. It held that the right to terminate life-sustaining treatment based on a guardian's judgment was limited to incurable and terminally ill patients who are brain dead, irreversibly comatose, or vegetative, and who would gain no medical benefit from continued treatment. Id., 190 N.J. Super. at 466. As an alternative ground for its decision, it held that a guardian's decision may never be used to withhold nourishment, as opposed to the treatment or attempted curing of a disease, from an incompetent patient who is not comatose, brain dead, or vegetative, and whose death is not irreversibly imminent. Id., 190 N.J. Super. at 469-70. Depriving a patient of a basic necessity of life, such as food, under those circumstances, the court stated, would hasten death rather than simply allow the illness to take its natural course. Id., 190 N.J. Super. at 473. The court concluded that withdrawal of Ms. Conroy's nasogastric tube would be tantamount to killing her -- not simply letting her die -- and that such active euthanasia was

ethically impermissible. Id., 190 N.J. Super. at 475. The Appellate Division therefore reversed the trial court's judgment.

We granted the guardian's petition for certification, 95 N.J. 195 (1983), despite Ms. Conroy's death, since we agree with the Appellate Division that the matter is of substantial importance and is capable of repetition but evades review. We permitted the participation as amici curiae of New Jersey Hospital Association; former Commissioners and professional staff members of the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research; National Citizens' Coalition for Nursing Home Reform; John R. Connery, S.J., William E. May, William Smith, Benedict Ashley, O.P., the Student Ad Hoc Committee Against the War in Vietnam, and the New Jersey Concerned Taxpayers; The American Geriatrics Society; New Jersey Catholic Conference; New Jersey Right to Life Committee, Inc.; and Concern for Dying.


This case requires us to determine the circumstances under which life-sustaining treatment may be withheld or withdrawn from an elderly nursing-home resident*fn1 who is suffering from serious and permanent mental and physical impairments, who will probably die within approximately one year even with the treatment, and who, though formerly competent, is now incompetent to make decisions about her life-sustaining treatment and is unlikely to regain such competence. Subsumed within this question are two corollary issues: what substantive guidelines are appropriate for making these treatment decisions for

incompetent patients, and what procedures should be followed in making them.

A tragic situation like that of Claire Conroy raises profoundly disturbing questions that do not lend themselves to easy answers or ideal solutions. 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." On the other hand, all persons have a fundamental right to expect that their lives will not be foreshortened against their will. The President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, an interdisciplinary group of ethicists, lawyers, doctors, theologians, and others established by Congress in 1978 to propose guidelines for resolving these and similar issues, stated the problem this way: "Once someone realizes that the time and manner of death are substantially under the control of medical science, he or she wants to be protected against decisions that make death too easy and quick as well as from those that make it too agonizing and prolonged." President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 23 (1983) [hereinafter cited as President's Commission Report ].

Deciding on a course of treatment for an incompetent patient without impinging on either of these two interests is a difficult task. To err either way -- to keep a person alive under circumstances under which he would rather have been allowed to die, or to allow that person to die when he would have chosen to cling to life -- would be deeply unfortunate.

We thus approach this case with caution, conscious that life-and-death decisions like these are an awesome responsibility that can be undertaken only with a profound sense of humility

and reserve. The case of Claire Conroy raises moral, social, technological, philosophical, and legal questions involving the interplay of many disciplines. No one person or profession has all the answers.

Perhaps it would be best if the Legislature formulated clear standards for resolving requests to terminate life-sustaining treatment for incompetent patients.*fn2 As an elected body, the Legislature is better able than any other single institution to reflect the social values at stake. In addition, it has the resources and ability to synthesize vast quantities of data and opinions from a variety of fields and to formulate general guidelines that may be applicable to a broad range of situations. As the Florida Supreme Court said when faced with a similar issue:

Because the issue with all its ramifications is fraught with complexity and encompasses the interests of the law, both civil and criminal, medical ethics and social morality, it is not one which is well-suited for resolution in an adversary judicial proceeding. It is the type [of] issue which is more suitably addressed in the legislative forum, where fact finding can be less confined and the viewpoints

of all interested institutions and disciplines can be presented and synthesized. In this manner only can the subject be dealt with comprehensively and the interests of all institutions and individuals be properly accommodated. [ Satz v. Perlmutter, 379 So. 2d 359, 360 (Fla.1980), aff'g 362 So. 2d 160 (Fla.Dist.Ct.App.1978).]

Accord In re Hamlin, 102 Wash. 2d 810, 821-22, 689 P. 2d 1372, 1379 (1984).

We have had the benefit of some legislation in this state concerning the rights of the institutionalized elderly. See N.J.S.A. 30:13-1 to -11 and N.J.S.A. 52:27G-1 to -16. The former statute prescribes certain responsibilities of nursing homes and rights of residents. The latter statute, discussed in detail infra at pages 378-381, is directed to the protection of the civil and human rights of the elderly confined to long-term care facilities and similar institutions. However, neither statute provides specific guidelines concerning termination of life-sustaining treatment.

Meanwhile, in the absence of specific legislation on the termination of life-sustaining treatment, we may not properly avoid the issue that we have been asked to resolve merely because it is troubling or difficult. Every day, and with limited legal guidance, families and doctors are making decisions for patients like Claire Conroy. See Howell, "Caretakers' Views on Responsibilities for the Care of the Demented Elderly," 32(9) J. Am. Geriatrics Soc'y 657, 658-59 (1984), and Hilfiker, "Sounding Board: Allowing the Debilitated to Die," 308 New Eng. J. Med. 716 (1983) (describing wide variety of contexts in which health care professionals may be forced to make such subjective decisions for patients and their families). The courts, as guardians of our personal rights, have a special responsibility to place appropriate constraints on such private decision-making and to create guideposts that will help protect people's interests in determining the course of their own lives. See Satz v. Perlmutter, supra, 379 So. 2d at 360-61. As we wrote in In re Quinlan, 70 N.J. 10, 44, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976): "[T]he law, equity and justice must not themselves quail and be

helpless in the face of modern technological marvels presenting questions hitherto unthought of."


The starting point in analyzing whether life-sustaining treatment may be withheld or withdrawn from an incompetent patient is to determine what rights a competent patient has to accept or reject medical care. It is therefore necessary at the outset of this discussion to identify the nature and extent of a patient's rights that are implicated by such decisions.

The right of a person to control his own body is a basic societal concept, long recognized in the common law:

No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, "The right to one's person may be said to be a right of complete immunity: to be let alone." Cooley on Torts, 29. [ Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001, 35 L. Ed. 734, 737 (1891) (refusing to compel personal injury plaintiff to undergo pretrial medical examination).]

Accord Perna v. Pirozzi, 92 N.J. 446, 459-65 (1983). Judge Cardozo succinctly captured the essence of this theory as follows: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914).

The doctrine of informed consent is a primary means developed in the law to protect this personal interest in the integrity of one's body. "Under this doctrine, no medical procedure may be performed without a patient's consent, obtained after explanation of the nature of the treatment, substantial risks, and alternative therapies." Cantor, "A Patient's Decision to Decline Life-Saving Medical Treatment: Bodily Integrity Versus the Preservation of Life," 26 Rutgers L.Rev. 228, 237 (1973) (footnote omitted); see also Perna v. Pirozzi, supra, 92 N.J. at 461

("Absent an emergency, patients have the right to determine not only whether surgery is to be performed on them, but who shall perform it.").

The doctrine of informed consent presupposes that the patient has the information necessary to evaluate the risks and benefits of all the available options and is competent to do so. Cf. Wanzer, Adelstein, Cranford, Federman, Hook, Moertel, Safar, Stone, Taussig & Van Eys, "The Physician's Responsibility Toward Hopelessly Ill Patients," 310 New Eng. J. Med. 955, 957 (1984) ("There are three basic prerequisites for informed consent: the patient must have the capacity to reason and make judgments, the decision must be made voluntarily and without coercion, and the patient must have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and the prognosis."). In general, it is the doctor's role to provide the necessary medical facts and the patient's role to make the subjective treatment decision based on his understanding of those facts. Cf. Hilfiker, supra, 308 New Eng. J. Med. at 718 (acknowledging that "our ability [as doctors] to phrase options, stress information, and present our own advice gives us tremendous power").

The patient's ability to control his bodily integrity through informed consent is significant only when one recognizes that this right also encompasses a right to informed refusal. Note, "Informed Consent and the Dying Patient," 83 Yale L.J. 1632, 1648 (1974). Thus, a competent adult person generally has the right to decline to have any medical treatment initiated or continued. See Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 738, 370 N.E. 2d 417, 424 (1977); In re Quackenbush, 156 N.J. Super. 282, 290 (Cty.Ct.1978); cf. Bennan v. Parsonnet, 83 N.J.L. 20, 22-23, 26-27 (Sup.Ct.1912) (acknowledging common-law rule that patient is "the final arbiter as to whether he shall take his chances with the operation or take his chances of living without it," but

holding that surgeon had implied consent while patient was unconscious to perform necessary surgical operation).

The right to make certain decisions concerning one's body is also protected by the federal constitutional right of privacy. The Supreme Court first articulated the right of privacy in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), which held that married couples have a constitutional right to use contraceptives. The Court in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), further extended its recognition of the privacy right to protect a woman's decision to abort a pregnancy although the woman's right to choose abortion directly conflicted with the state's legitimate and important interest in preserving the potentiality of fetal life. Finally, in Quinlan, supra, 70 N.J. at 40, we indicated that the right of privacy enunciated by the Supreme Court "is broad enough to encompass a patient's decision to decline medical treatment under certain circumstances," even if that decision might lead to the patient's death. Accord Saikewicz, supra, 373 Mass. at 738, 370 N.E. 2d at 424; Quackenbush, supra, 156 N.J. Super. at 289-90. While this right of privacy might apply in a case such as this, we need not decide that issue since the right to decline medical treatment is, in any event, embraced within the common-law right to self-determination. Accord In re Storar, 52 N.Y. 2d 363, 376-77, 420 N.E. 2d 64, 70, 438 N.Y.S. 2d 266, 272-73, cert. denied, 454 U.S. 858, 102 S. Ct. 309, 70 L. Ed. 2d 153 (1981); Note, "Live or Let Die; Who Decides an Incompetent's Fate? In re Storar and In re Eichner," 1982 B.Y.U.L.Rev. 387, 390-92.

Whether based on common-law doctrines or on constitutional theory, the right to decline life-sustaining medical treatment is not absolute. In some cases, it may yield to countervailing societal interests in sustaining the person's life. Courts and commentators have commonly identified four state interests that may limit a person's right to refuse medical treatment: preserving life, preventing suicide, safeguarding the

integrity of the medical profession, and protecting innocent third parties. See, e.g., Satz v. Perlmutter, supra, 362 So. 2d at 162; In re Spring, 380 Mass. 629, 640, 405 N.E. 2d 115, 123 (1980); Commissioner of Correction v. Myers, 379 Mass. 255, 261, 399 N.E. 2d 452, 456 (1979); Saikewicz, supra, 373 Mass. at 728, 370 N.E. 2d at 425; In re Torres, 357 N.W. 2d 332, 339 (Minn.1984); In re Colyer, 99 Wash. 2d 114, 121, 660 P. 2d 738, 743 (1983); President's Commission Report, supra, at 31-32; Note, " In re Storar: The Right to Die and Incompetent Patients," 43 U.Pitt.L.Rev. 1087, 1092 (1982).

The state's interest in preserving life is commonly considered the most significant of the four state interests. See, e.g., Spring, supra, 380 Mass. at 633, 405 N.E. 2d at 119; Saikewicz, supra, 373 Mass. at 740, 370 N.E. 2d at 425; President's Commission Report, supra, at 32. It may be seen as embracing two separate but related concerns: an interest in preserving the life of the particular patient, and an interest in preserving the sanctity of all life. Cantor, " Quinlan, Privacy, and the Handling of Incompetent Dying Patients," 30 Rutgers L.Rev. 239, 249 (1977); see Annas, "In re Quinlan: Legal Comfort for Doctors," Hastings Center Rep., June 1976, at 29.

While both of these state interests in life are certainly strong, in themselves they will usually not foreclose a competent person from declining life-sustaining medical treatment for himself. This is because the life that the state is seeking to protect in such a situation is the life of the same person who has competently decided to forego the medical intervention; it is not some other actual or potential life that cannot adequately protect itself. Cf. Roe v. Wade, supra, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (authorizing state restrictions or proscriptions of woman's right to abortion in final trimester of pregnancy to protect viable fetal life); State v. Perricone, 37 N.J. 463, cert. denied, 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962) (affirming trial court's appointment of guardian with authority to consent to blood transfusion for infant over parents' religious

objections); Muhlenberg Hosp. v. Patterson, 128 N.J. Super. 498 (Law Div.1974) (authorizing blood transfusion to save infant's life over parents' religious objections).

In cases that do not involve the protection of the actual or potential life of someone other than the decisionmaker, the state's indirect and abstract interest in preserving the life of the competent patient generally gives way to the patient's much stronger personal interest in directing the course of his own life. See, e.g., Quackenbush, supra, 156 N.J. Super. at 290; Cantor, supra, 30 Rutgers L.Rev. at 249-50. Indeed, insofar as the "sanctity of individual free choice and self-determination [are] fundamental constituents of life," the value of life may be lessened rather than increased "by the failure to allow a competent human being the right of choice." Saikewicz, supra, 373 Mass. at 742, 370 N.E. 2d at 426; see also Cantor, supra, 30 Rutgers L.Rev. at 250 ("Government tolerance of the choice to resist treatment reflects concern for individual self-determination, bodily integrity, and avoidance of suffering, rather than a deprecation of life's value.").

It may be contended that in conjunction with its general interest in preserving life, this state has a particular legislative policy of preventing suicide. See N.J.S.A. 30:4-26.3a (subjecting any person who attempts suicide to temporary hospitalization when the person's behavior suggests the existence of mental illness and constitutes a peril to life, person, or property); see also N.J.S.A. 2C:11-6 ("A person who purposely aids another to commit suicide is guilty of a crime of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a crime of the fourth degree."). This state interest in protecting people from direct and purposeful self-destruction is motivated by, if not encompassed within, the state's more basic interest in preserving life. Thus, it is questionable whether it is a distinct state interest worthy of independent consideration.

In any event, declining life-sustaining medical treatment may not properly be viewed as an attempt to commit suicide.

Refusing medical intervention merely allows the disease to take its natural course; if death were eventually to occur, it would be the result, primarily, of the underlying disease, and not the result of a self-inflicted injury. See Satz v. Perlmutter, supra, 362 So. 2d at 162; Saikewicz, supra, 373 Mass. at 743 n. 11, 370 N.E. 2d at 426 n. 11; Colyer, supra, 99 Wash. 2d at 121, 660 P. 2d at 743; see also President's Commission Report, supra, at 38 (summarizing case law on the subject). But cf. In re Caulk, 125 N.H. 226, 230-232, 480 A.2d 93, 96-97 (1984) (stating that attempt of an otherwise healthy prisoner to starve himself to death because he preferred death to life in prison was tantamount to attempted suicide, and that the state, to prevent such suicide, could force him to eat). In addition, people who refuse life-sustaining medical treatment may not harbor a specific intent to die, Saikewicz, supra, 373 Mass. at 743, n. 11, 370 N.E. 2d at 426 n. 11; rather, they may fervently wish to live, but to do so free of unwanted medical technology, surgery, or drugs, and without protracted suffering, see Satz v. Perlmutter, supra, 362 So. 2d at 162-63 ("The testimony of Mr. Perlmutter * * * is that he really wants to live, but [to] do so, God and Mother Nature willing, under his own power.").

Recognizing the right of a terminally ill person to reject medical treatment respects that person's intent, not to die, but to suspend medical intervention at a point consonant with the "individual's view respecting a personally preferred manner of concluding life." Note, "The Tragic Choice: Termination of Care for Patients in a Permanent Vegetative State," 51 N.Y.U.L.Rev. 285, 310 (1976). The difference is between self-infliction or self-destruction and self-determination. See Byrn, "Compulsory Lifesaving Treatment for the Competent Adult," 44 Fordham L.Rev. 1, 16-23 (1975). To the extent that our decision in John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 581-82 (1971), implies the contrary, we now overrule it.

The third state interest that is frequently asserted as a limitation on a competent patient's right to refuse medical treatment is the interest in safeguarding the integrity of the

medical profession. This interest, like the interest in preventing suicide, is not particularly threatened by permitting competent patients to refuse life-sustaining medical treatment. Medical ethics do not require medical intervention in disease at all costs. As long ago as 1624, Francis Bacon wrote, "I esteem it the office of a physician not only to restore health, but to mitigate pain and dolours; and not only when such mitigation may conduce to recovery, but when it may serve to make a fair and easy passage." F. Bacon, New Atlantis, quoted in Mannes, "Euthanasia vs. The Right to Life," 27 Baylor L.Rev. 68, 69 (1975). More recently, we wrote in Quinlan, supra, 70 N.J. at 47, that modern-day "physicians distinguish between curing the ill and comforting and easing the dying; that they refuse to treat the curable as if they were dying or ought to die, and that they have sometimes refused to treat the hopeless and dying as if they were curable." Indeed, recent surveys have suggested that a majority of practicing doctors now approve of passive euthanasia and believe that it is being practiced by members of the profession. See sources cited in Storar, supra, 52 N.Y. 2d at 385-386 n. 3, 420 N.E. 2d at 75-76 n. 3, 438 N.Y.S. 2d at 277-78 n. 3 (Jones, J., dissenting), and in Collester, "Death, Dying and the Law: A Prosecutorial View of the Quinlan Case," 30 Rutgers L.Rev. 304, n. 3, 312 & n. 27.

Moreover, even if doctors were exhorted to attempt to cure or sustain their patients under all circumstances, that moral and professional imperative, at least in cases of patients who were clearly competent, presumably would not require doctors to go beyond advising the patient of the risks of foregoing treatment and urging the patient to accept the medical intervention. Storar, supra, 52 N.Y. 2d at 377, 420 N.E. 2d at 71, 438 N.Y.S. 2d at 273; see Colyer, supra, 99 Wash. 2d at 121-23, 660 P. 2d at 743-44, citing Saikewicz, supra, 373 Mass. at 743-44, 370 N.E. 2d at 417. If the patient rejected the doctor's advice, the onus of that decision would rest on the patient, not the doctor. Indeed, if the patient's right to informed consent is to have any meaning at all, it must be accorded respect even when

it conflicts with the advice of the doctor or the values of the medical profession as a whole.

The fourth asserted state interest in overriding a patient's decision about his medical treatment is the interest in protecting innocent third parties who may be harmed by the patient's treatment decision. When the patient's exercise of his free choice could adversely and directly affect the health, safety, or security of others, the patient's right of self-determination must frequently give way. Thus, for example, courts have required competent adults to undergo medical procedures against their will if necessary to protect the public health, Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905) (recognizing enforceability of compulsory smallpox vaccination law); to prevent a serious risk to prison security, Myers, supra, 379 Mass. at 263, 265, 399 N.E. 2d at 457, 458 (compelling prisoner with kidney disease to submit to dialysis over his protest rather than acquiescing in his demand to be transferred to a lower-security prison); accord Caulk, supra, 125 N.H. at 230-231, 480 A.2d at 96; or to prevent the emotional and financial abandonment of the patient's minor children, Application of President & Directors of Georgetown College, Inc., 331 F.2d 1000, 1008 (D.C.Cir.), cert. denied, 377 U.S. 978, 84 S. Ct. 1883, 12 L. Ed. 2d 746 (1964) (ordering mother of seven-month-old infant to submit to blood transfusion over her religious objections because of the mother's "responsibility to the community to care for her infant"); Holmes v. Silver Cross Hosp., 340 F. Supp. 125, 130 (N.D.Ill.1972) (indicating that patient's status as father of minor child might justify authorizing blood transfusion to save his life despite his religious objections).

On balance, the right to self-determination ordinarily outweighs any countervailing state interests, and competent persons generally are permitted to refuse medical treatment, even at the risk of death. Most of the cases that have held otherwise, unless they involved the interest in protecting innocent third parties, have concerned the patient's competency to [98 NJ Page 354] make a rational and considered choice of treatment. See Annot., 93 A.L.R. 3d 67, at 80-85 (1979) ("Patient's Right to Refuse Treatment Allegedly Necessary to Sustain Life"). For example, in Heston, supra, 58 N.J. 576, this Court approved a blood transfusion to save the life of a twenty-two-year-old Jehovah's Witness who had been severely injured and was rushed to the hospital for treatment, despite the fact that a tenet of her faith forbade blood transfusions. The evidence indicated that she was in shock on admittance to the hospital and was then or soon became disoriented and incoherent. Part of the Court's rationale was that hospitals, upon which patients' care is thrust, "exist to aid the sick and the injured," id. 58 N.J. at 582, and that it is difficult for them to assess a patient's intent in an emergency and to determine whether a desire to refuse treatment is firmly and competently held, id. 58 N.J. at 581, 582. Similarly, courts in other states have authorized blood transfusions over the objections of Jehovah's Witnesses when the patient's opposition to the treatment was expressed in equivocal terms. Compare Georgetown College, supra, 331 F.2d at 1006-07 (authorizing transfusion to save life of patient who said that for religious reasons she would not consent to the transfusion, but who seemed to indicate that she would not oppose the transfusion if court ordered it since it would not then be her responsibility), and United States v. George, 239 F. Supp. 752, 753 (D.Conn.1965) (transfusion was authorized for patient who told court that he would not agree to the transfusion, but volunteered that if the court ordered it he would not resist in any way since it would be the court's will and not his), with In re Osborne, 294 A.2d 372, 374, 375 (D.C.1972) (stating that guardian should not be appointed to consent to transfusion on behalf of man who told court that he would be deprived of "everlasting life" if compelled by a court to submit to the transfusion, and who explained, "it is between me and Jehovah; not the courts. . . . I'm willing to take my chances. My faith is that strong.").

In view of the case law, we have no doubt that Ms. Conroy, if competent to make the decision and if resolute in her determination, could have chosen to have her nasogastric tube withdrawn. Her interest in freedom from nonconsensual invasion of her bodily integrity would outweigh any state interest in preserving life or in safeguarding the integrity of the medical profession. In addition, rejecting her artificial means of feeding would not constitute attempted suicide, as the decision would probably be based on a wish to be free of medical intervention rather than a specific intent to die, and her death would result, if at all, from her underlying medical condition, which included her inability to swallow. Finally, removal of her feeding tube would not create a public health or safety hazard, nor would her death leave any minor dependents without care or support.

It should be noted that if she were competent, Ms. Conroy's right to self-determination would not be affected by her medical condition or prognosis. Our Legislature has recognized that an institutionalized, elderly person, whatever his physical and mental limitations and life expectancy, has the same right to receive medical treatment as a competent young person whose physical functioning is basically intact. See N.J.S.A. 52:27G-1 (declaring "that it is the public policy of this State to secure for elderly patients, residents and clients of health care facilities serving their specialized needs and problems, the same civil and human rights guaranteed to all citizens") (emphasis added). Moreover, a young, generally healthy person, if competent, has the same right to decline life-saving medical treatment as a competent elderly person who is terminally ill. Of course, a patient's decision to ...

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