Conservatorship of Wendland

Brief Fact Summary. Rose Wendland (Conservator) (Petitioner) (Plaintiff) sought an order from the trial court granting her the authority to withhold or withdraw life-sustaining medical treatment from her husband, a conscious but incompetent conservatee.

Synopsis of Rule of Law. The conservator of a conscious conservatee cannot withhold artificial nutrition and hydration when the conservatee is not terminally ill, comatose, or in a persistent vegetative state, and has not left instructions for a surrogate to make decisions regarding health care.

Facts. Robert Wendland (Robert) was involved in a single-vehicle accident resulting in brain injury that left him conscious but severely disabled.  He was dependent on the life-supporting treatment of artificial hydration and nutrition which he received through a feeding tube.  After a prolonged recovery period, he was able to regain some basic functioning such as operating an electronic wheelchair, drawing circles and performing simple two-step commands.  However, he was not able to verbalize and the medical staff was not able to establish a consistent method of communication with him.  His medical report noted that he was severely mentally and physically disabled.  Rose Wendland, Robert’s wife, had agreed to the placement of a feeding tube three different times, but the fourth time she said no when doctors made a request to replace the tube.  The doctors agreed, but they inserted a nasogastric tube for feeding until the hospital’s ethics committee could make a recommendation.  The twenty-member ethics committee unanimously approved of Rose’s decision to stop the artificial feedings, but when Robert’s mother and sister learned of the plan, they petitioned the court for a temporary restraining order.  The order was granted.  Rose petitioned the court to become Robert’s conservator and sought an order granting her authority to give informed consent for medical treatment and for withholding life-sustaining medical treatment, including hydration and nutrition.  The trial court granted the conservatorship and the authority to consent to receiving treatment, but denied authority for withholding treatment.  After a 60-day observation period, during which Robert made no progress, Rose, now Conservator (Plaintiff), renewed her petition for authority to withhold treatment.  Her request was denied by the trial court, finding insufficient evidence to meet the “clear and convincing” evidentiary standard that Robert, now incapacitated, would not want to receive life-sustaining treatment under these circumstances.  However, the court of appeals reversed, acknowledging the evidence that Robert had made statements that he would not want to live as a vegetable, or in a comatose state, or if he were unable to perform basic activities of living such as feeding himself and communicating.  This appeal followed.

Issue. Can the conservator of a conscious conservatee cannot withhold artificial nutrition and hydration when the conservatee is not terminally ill, comatose, or in a persistent vegetative state, and has not left instructions for a surrogate to make decisions regarding health care?

Held. (Werdegar, J.)  No.  The conservator of a conscious conservatee cannot withhold artificial nutrition and hydration when the conservatee is not terminally ill, comatose, or in a persistent vegetative state, and has not left instructions for a surrogate to make decisions regarding health care.  There is no question that a competent adult has the right to refuse medical treatment, even life-sustaining treatment.  This right springs from the rights of informed consent and privacy, as well as a liberty interest granted in our Constitution.  A conservator can only make decisions as the conservatee wished, when those wishes are known.  No assumption or presumption can be made that a conservator has been given the authority to end the life of the conservatee in accordance with his or her wishes.  The risk of error is simply too high.  Consequently, Conservator (Plaintiff) was required to meet the higher “clear and convincing” evidence standard to obtain the authority to withdraw life-sustaining treatment as opposed to the “preponderance” standard applied to other conservatorship duties.  The evidence does not support the conclusion that Robert, who is still conscious and not in a persistent vegetative state, would want to die under these circumstances.  All of Robert’s pre-accident statements regarding his wishes not to receive treatment referenced a much greater incapacity.  Nor does the “best interests” standard help Conservator’s (Plaintiff) position.  This standard, while appearing in the Probate Code for ordinary decisions involving a conservatee, does not apply when the decision contemplated threatens the conservatee’s fundamental rights to life and privacy.  The court of appeals’ decision is reversed.

Discussion. While courts have universally recognized a right to life, the right to death is viewed with apprehension.  However, the California Supreme Court did note what it was not deciding in this case.  The court emphasized that the clear and convincing evidence standard did not apply to most conservatorship decisions, but only those which involved removing life-support.  The court also distinguished the “narrow class” of persons affected by the decision—those who did not leave a formal directive regarding their health care prior to their incapacity and who were not comatose or in a persistent vegetative state.  As important evidentiary standards have changed for surrogates making life and death health care decisions, the need for clear advanced health care directives or living wills has gained prominence.  The high-profile nature of these cases has assisted with informing the public that once a person becomes incapacitated, it is too late to provide the amount of evidence needed to sustain a choice to remove life support if those wishes were not adequately articulated before incapacitation.