On appeal from Superior Court, Chancery Division, Probate Part, Cumberland County.
Michels, Gruccio and D'Annunzio. The opinion of the court was delivered by Gruccio, J.A.D.
This case concerns an issue of first impression in New Jersey: the removal of life support from a never-competent resident of a state hospital who has been retarded since birth.
Marie Moorhouse was born in 1940 with Down's Syndrome. Since 1947, she has resided at the Vineland Developmental Center (VDC), an institution operated by the New Jersey Department of Human Services, Division of Developmental Disabilities (DDD). In 1967, the DDD's Bureau of Guardianship Services (BGS) was appointed Moorhouse's guardian, pursuant to N.J.S.A. 30:4-165.1 to -165.6.*fn1
On May 27, 1990, Moorhouse was found breathless and pulseless in her residential unit at VDC. She was immediately brought to the VDC emergency room, where she was resuscitated. Moorhouse was then sent to the intensive care unit and connected to a respirator. She has never regained consciousness and continues to be connected to a respirator.
On August 28, 1990, Chester Miros, Ph.D., Chief of BGS, wrote to the Public Advocate stating his intention to bring guardianship proceedings for Moorhouse. Dr. Miros stated
that Moorhouse was "brain dead," on life support and that Barbara Horan, her sister and only known relative, wished to become Moorhouse's legal guardian in order to make medical decisions for her. BGS apparently did not institute court proceedings allowed by N.J.S.A. 30:4-165.4 to .16 to have Moorhouse judicially declared incompetent and to have Horan replace BGS as guardian.
On November 2, 1990, Alice Cesaretti, Deputy Attorney General, notified the Public Advocate that Moorhouse was "brain dead" and that Horan had asked that the respirator be disconnected. She stated that the hospital's prognosis committee would be meeting on the following Thursday to decide whether to concur with Horan's decision. If it did concur, the respirator would be disconnected.
On November 8, 1990, the Public Advocate filed a verified complaint and order to show cause with temporary restraints in the Superior Court, Chancery Division, Probate Part, Cumberland County. It sought to restrain removal of life-support treatment from Moorhouse.
The assigned judge heard oral argument on November 8, 1990, appointed Linda Pirolli, Esq., as guardian ad litem for Moorhouse and instructed her to review Moorhouse's records, interview the VDC hospital staff attending Moorhouse, Moorhouse's treating physicians and her sister and review all DDD records on Moorhouse. In addition, the guardian ad litem was directed to "submit written recommendations as to the legal standards which should be used and the procedures which should be followed before implementing any decision to terminate life-sustaining treatment for Ms. Moorhouse." The judge then signed a revised order to show cause returnable November 16, 1990, restraining the withdrawal of life support from Moorhouse until further order of the court.
On November 16, 1990, the trial judge received briefs from the Public Advocate, the Attorney General and the guardian ad litem and made the guardian ad litem's report part of the
record. The report indicates that the guardian ad litem had reviewed Moorhouse's medical records, had visited Moorhouse, and had spoken with Horan. Although the report does not make it clear whether all members of the VDC prognosis committee, including Dr. Asha Gandhi, Moorhouse's treating physician, were interviewed, the guardian ad litem orally reported that she indeed had spoken with Dr. Gandhi.
The guardian ad litem produced several members of the prognosis committee at the November 16, 1990 hearing and requested that the court consider hearing their testimony with regard to the appropriateness of Moorhouse's sister being named guardian and the precise nature of Moorhouse's medical condition. However, the trial judge heard no testimony from any committee member, stating: "I will not require the testimony of the other members of the Developmental Center who are present. I am satisfied that the record itself today is clear and convincing respecting the medical condition of this patient, and the issue simply is does the sister qualify." At that point, the record consisted of the parties' and guardian ad litem's briefs and oral statements. With the exception of Moorhouse's sister, there was no testimony given by anyone at either hearing. The only medical records of Moorhouse submitted to the court were uncertified copies of five pages of handwritten "progress notes" of two doctors contained in an Exhibit in DDD's trial brief.
After hearing Horan's testimony on November 16, 1990, the trial judge found that Horan had a sincere lifelong interest in Moorhouse's welfare, that she had no improper motives and that she would not gain financially from Moorhouse's death. He then appointed Horan to act as Moorhouse's guardian with the power to terminate Moorhouse's life-support treatment and denied the Public Advocate's request for a stay of the order. Following an application for emergent relief, we stayed the authorization to terminate life support pending the outcome of this appeal.
In his opinion, the trial judge established a procedure to be followed before allowing removal of life-support treatment from DDD/BGS clients living in state institutions: When a state institution receives a request from a family member or friend to terminate life-support and the hospital medical-ethics committee concurs with the decision after two neurologists diagnose a persistent vegetative state, DDD shall, upon notification to the Public Advocate, apply to the court for the appointment of a guardian ad litem, even if the patient already has a guardian. The guardian ad litem, who must be an attorney, must file a report with the court within 10 days after appointment and, if desired, may obtain an independent neurological evaluation. A court hearing shall be conducted within five court days after the guardian ad litem's report is received. The court will use a clear and convincing evidentiary standard in determining whether a persistent vegetative state is confirmed and whether that determination confirms the propriety of the request to discontinue a life-support system.
A review of our Supreme Court's decisions in so-called right-to-die cases is a necessary predicate to our review of the procedures ...