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In re Farrell

Decided: June 24, 1987.

IN THE MATTER OF KATHLEEN FARRELL


On certification to the Superior Court, Chancery Division, Ocean County, whose opinion is reported at 212 N.J. Super. 294 (1986).

For affirmance -- Chief Justice Wilentz, Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Concurring in result -- Justices Clifford, Handler, Pollock and O'Hern. The opinion of the Court was delivered by Garibaldi, J. Chief Justice Wilentz and Justices Clifford, Handler, Pollock, and Stein join in this opinion. Justice Handler has filed a separate concurring opinion in which Justices Clifford and Pollock join. Justice O'Hern has filed a separate concurring opinion. Handler, J., concurring. O'Hern, J., concurring.

Garibaldi

[108 NJ Page 340] Death comes to everyone. However, in our society, due to great advances in medical knowledge and technology over the last few decades, death does not come suddenly or completely unexpectedly to most people. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 15 (1983) (hereinafter President's Commission Report).*fn1 Instead, most people who die are under the treatment of health care professionals who are able to continue physical existence for human beings "even when most of our physical and mental capacities have been irrevocably lost." In re Conroy, 98 N.J. 321, 343 (1985). While medical advances have made it possible to forestall and cure certain illnesses previously considered fatal, they also have prolonged the slow deterioration and death of some patients. Sophisticated life-sustaining

medical technology has made it possible to hold some people on the threshold of death for an indeterminate period of time, "obfuscat[ing] the use of traditional definition of death." In re Quinlan, 70 N.J. 10, 27, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976). Questions of fate have thereby become matters of choice raising profound "moral, social, technological, philosophical, and legal questions involving the interplay of many disciplines." Matter of Conroy, supra, 98 N.J. at 344; see Perspectives on J. Katz, The Silent World of Doctor and Patient, 9 W. New Eng.L.Rev. 1 (1987).

We are faced with such issues in this case, and In re Peter, 108 N.J. 365 (1987), and In re Jobes, 108 N.J. 394 (1987), also decided today. Specifically, these three appeals concern the withdrawal of life-sustaining treatment from three women suffering from incurable and irreversible medical conditions. Because of their ages, places of residence, and medical conditions, none of their cases falls within the factual pattern of either of our seminal decisions, Quinlan, supra, 70 N.J. 10, or Conroy, supra, 98 N.J. 321. Kathleen Farrell, a thirty-seven-year-old, competent, terminally-ill patient suffering from amyotrophic lateral sclerosis (ALS), commonly known as Lou Gehrig's disease, died at home. Hilda Peter is a sixty-five-year-old nursing home resident in a persistent vegetative state, and Nancy Jobes is a thirty-one-year-old nursing home resident in a persistent vegetative state. Neither Ms. Peter nor Mrs. Jobes is expected to die within a year. The variety of these cases illustrates the infinite number of situations that call for decisionmaking about life-sustaining medical treatment. We recognize, as we did in Conroy, and as have numerous other courts, that given the fundamental societal questions that must be [108 NJ Page 342] resolved, the Legislature is the proper branch of government to set guidelines in this area:*fn2

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. [ Conroy, supra, 98 N.J. 344-45, (quoting Satz v. Perlmutter, 379 So. 2d 359, 360 (Fla.1980), aff'g 362 So. 2d 160 (Fla.Dist.Ct.App.1978)).]

Accord In re Barber, 147 Cal.App. 3d 1006, 1016-17, 195 Cal.Rptr. 484, 488 (Cal.Ct.App.1983); Severns v. Wilmington Medical Center, 421 A.2d 1334, 1346 (Del.1980); In re Eichner, 52 N.Y. 2d 363, 382, 420 N.E. 2d 64, 74, 438 N.Y.S. 2d 266, 276, cert. denied, 454 U.S. 858, 102 S. Ct. 309, 70 L. Ed. 2d 153 (1981); In re Hamlin, 102 Wash. 2d 810, 821-22, 689 P. 2d 1372, 1379 (1984).

Nevertheless, patients and their families and physicians are increasingly being faced with these difficult and complex decisions without legislative guidelines and under the threat of civil and criminal liability. Until the Legislature acts, it is to the courts that the public must look for the guidelines and procedures under which life-sustaining medical treatment may be withdrawn or withheld. Sensitive to the patients' rights to self-determination, but cognizant of the vulnerability of the

sick, we strive to protect all the relevant interests. We approach this task with great humility, for we recognize that "[t]o 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." Conroy, supra, 98 N.J. at 343.

As in Quinlan and Conroy, we do not today determine whether life-sustaining medical treatment should be withdrawn from any of the patients in these cases, but rather define who may make such a decision and how it may be made.

I

Although we stated the general principle that competent informed patients have the right to decline life-sustaining treatment in both Quinlan, supra, 70 N.J. at 39, and Conroy, supra, 98 N.J. at 347, each of those cases involved an incompetent institutionalized patient. In this case we deal for the first time with the right of a competent, terminally-ill adult patient living at home to withdraw a life-sustaining respirator.

Kathleen married Francis Farrell in 1969. They had two children. Prior to her illness, Mrs. Farrell worked as a keypunch operator. In November 1982, she began to experience symptoms associated with ALS, a disorder of the nervous system that results in degeneration of the victim's muscles. Although it eventually renders a patient incapable of movement, ALS does not impair the patient's mental faculties. The cause of the disease is unknown and there is no available treatment or cure. At the time of diagnosis, a victim's life expectancy even with life-sustaining treatment is usually one to three years.

After she became ill, Mrs. Farrell was admitted to a Philadelphia hospital where she underwent a tracheotomy and was

connected to a respirator.*fn3 In the autumn of 1983, she was released from the hospital because it could provide no further help for her condition. She returned home to live with her husband and their two teenage sons. Thereafter Mrs. Farrell was paralyzed and confined to bed in need of around-the-clock nursing care. Insurance covered all the expenses of this care.

In November 1985, after an experimental program that her husband characterized as "their last hope" had failed, Mrs. Farrell told him that she wanted to be disconnected from the respirator that sustained her breathing. Mr. Farrell told her doctor, John Pino, of her decision. The doctor advised Mrs. Farrell that she would die if her respirator were removed. Dr. Pino arranged for a psychologist, Dr. Jean Orost, to interview Mrs. Farrell. Dr. Orost determined that Mrs. Farrell was not clinically depressed and needed no psychiatric treatment. She concluded that Mrs. Farrell had made an informed, voluntary, and competent decision to remove the respirator. Dr. Orost continued to see Mrs. Farrell on a weekly basis from the time of their first interview in January 1986 until her death the following June.

On June 13, 1986, Francis Farrell filed a Chancery Division complaint seeking his appointment as Special Medical Guardian for his wife with specific authority to disconnect her respirator. He also sought a declaratory judgment that he and anyone who assisted him in disconnecting her respirator would incur no civil or criminal liability. The trial court executed an Order to Show Cause, which set June 16, 1986, as the return date, and appointed a guardian ad litem for the children.

Part of the trial was conducted at the Farrells' home in order to enable Mrs. Farrell to testify. The court described Mrs. Farrell's medical condition at the time of the trial as follows:

Mrs. Farrell presently appears to be a very fragile woman, weighing less than 100 pounds. In December 1982 she weighed 161 pounds. She has no control over her hands, arms, feet or legs, is incontinent as to bowel, and has difficulty with bladder function. She has difficulty in swallowing and is fed liquids, such as fruit juices, with a syringe by nurses who attend to her needs 24 hours a day. She is incapable of taking any solid foods by mouth. She is able to open and close her eyes and can see but has difficulty in talking. During her testimony, a court reporter took down what she said, and her husband at times repeated her answers to questions. Her answers were generally limited to yes or no, and at times an alphabet board was used to be certain her answer was understood. Her mouth tended to fill up with saliva and made her answers difficult to understand at times. When her children and better days were discussed with Mrs. Farrell, her eyes filled with tears and her husband assisted her in blowing her nose. She is incapable of moving her head, neck, or any other part of her body. On occasion she is put in a reclining chair and can watch television although she stated she usually falls asleep. She has pain in her arms and back, but medication does relieve it to some extent.

[ In re Farrell, supra, 212 N.J. Super. at 296-97.]

At the trial, Mrs. Farrell testified that she had discussed her decision to withdraw the respirator with her husband, their two sons, her parents, her sister, and her psychologist, Dr. Orost. These discussions had been upsetting, but resulted in open and full communication among all the parties. Mrs. Farrell had also discussed the consequences of her decision with a respiratory specialist, Dr. Sollami. When Mrs. Farrell was asked why she had decided to disconnect her respirator and to let nature take its course, she responded, "I'm tired of suffering."

Dr. Orost testified that Mrs. Farrell's decision was not the result of a mere whim or casual decision. The doctor's opinion was based on the weekly discussions she had been having with Mrs. Farrell over the prior six months. Additionally, a Board-certified psychologist examined Mrs. Farrell at the request of the attorney for the children's guardian. He testified that she was competent to make the decision.

After closing arguments on June 23, 1986, the trial court granted all the relief that Mr. Farrell had requested, but stayed his order pending appellate review. The next day Peter Strohm, the guardian for the children, filed a notice of appeal with the Appellate Division and petitioned this court for direct certification. On June 25, 1986, Mr. Farrell's counsel filed a

letter memorandum joining in the request of the guardian.*fn4 We granted certification on June 27, 1986. 104 N.J. 446.

On June 29, 1986, Mrs. Farrell died while still connected to the respirator. Despite her death, both the guardian ad litem and Mr. Farrell have urged us to address her case and formulate guidelines that might aid future patients, their loved ones, and their physicians in dealing with similar situations. Because of the extreme importance of the issue and the inevitability of cases like this one arising in the future, see In re Conroy, supra, 98 N.J. at 342, we agree to render a decision on the merits.

II

In resolving this case, as well as the two other cases we decide today, we build on the principles established in Quinlan and Conroy. Hence, we start by reaffirming the well-recognized common-law right of self-determination that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body. . . ." Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914) (Cardozo, J.). In Conroy, we stated that "[t]he right of a person to control his own body is a basic societal concept, long recognized in the common law." 98 N.J. at 346. We explained that the doctrine of "informed consent" was developed to protect the right to self-determination in matters of medical treatment. Id. at 346-48. This doctrine prescribes the "duty of a physician to disclose to a patient information that will enable him to evaluate knowledgeably the options available and the risks attendant upon each before subjecting that patient to a course of treatment." Perna v. Pirozzi, 92 N.J. 446, 459 (1983) (citations omitted); see Conroy, supra, 98 N.J. at 346.

As medical technology has been advancing, the doctrine of informed consent has been developing.*fn5 Thus, in Conroy we recognized the patient's right to give an informed refusal to medical treatment as the logical correlative of the right to give informed consent. We stated that "a competent adult person generally has the right to decline to have any medical treatment initiated or continued." Conroy, supra, 98 N.J. at 347.

While we held that a patient's right to refuse medical treatment even at the risk of personal injury or death is primarily protected by the common law, we recognized that it is also protected by the federal and state constitutional right of privacy. See id. at 348; Quinlan, supra, 70 N.J. at 38-42.

Numerous other courts have upheld the right of a competent patient to refuse medical treatment even if that decision will hasten his or her death. See, e.g., Bouvia v. Superior Court, 179 Cal.App. 3d 1127, 225 Cal.Rptr. 297 (Cal.Ct.App.1986), review denied (June 5, 1986); Bartling v. Superior Court, 163 Cal.App. 3d 186, 209 Cal.Rptr. 220 (Cal.Ct.App.1984); In re Osborne, 294 A.2d 372 (D.C.1972); Satz v. Perlmutter, 362 So. 2d 160 (Fla.Dist.Ct.App.1978), aff'd, 379 So. 2d 359 (Fla.1980); In re Brooks' Estate, 32 Ill. 2d 361, 205 N.E. 2d 435 (1965); Lane v. Candura, 6 Mass.App.Ct. 377, 376 N.E. 2d 1232 (1978), cited with approval in Brophy v. New England Sinai Hosp., 398 Mass. 417, 497 N.E. 2d 626 (1986); In re Requena, 213 N.J. Super. 443 (App.Div.1986), aff'g 213 N.J. Super. 475 (Ch.Div.1986); In re Quackenbush, 156 N.J. Super. 282 (Morris County Ct.1978), cited with approval in Conroy, supra, 98 N.J. at 347.

Nevertheless, the right to refuse life-sustaining medical treatment is not absolute. The state has at least four potentially countervailing interests in sustaining a person's life:

preserving life, preventing suicide, safeguarding the integrity of the medical profession and protecting innocent third parties. [ Conroy, supra, 98 N.J. at 348-49 (citing 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 v. Superintendent of Belchertown State School, 373 Mass. 728, 738, 370 N.E. 2d 417, 426 (1977); 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)).]

When a party declines life-sustaining medical treatment, we balance the patient's common-law and constitutional rights against these four state interests. In this case, none of these interests, as we interpreted them in Conroy, nor their concert, outweighs Kathleen Farrell's rights to privacy and self-determination.

The state's interest in preserving life embraces "an interest in preserving the life of the particular patient, and an interest in preserving the sanctity of all life." Conroy, supra, 98 N.J. at 349. Neither of those interests is compelling in this case. In Conroy, we decided that the value of life is desecrated not by a decision to refuse medical treatment but "by the failure to allow a competent human being the right of choice." Id. at 350 (quoting Saikewicz v. Superintendent of Belchertown State School, supra, 373 Mass. at 742, 370 N.E. 2d at 426 (1977)). Thus, "[i]n cases that do not involve the protection of the actual or potential life of someone other than the decision-maker, the state's indirect and abstract interest in ...


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