Guardianship of Doe

583 N.E.2d 1263, 411 Mass. 512, 1992 Mass. LEXIS 10

• Court: Massachusetts Supreme Judicial Court
• Decided: January 6, 1992
• Status: Published

Opinions

Abrams, J.

We are asked to decide whether a judge correctly determined that a profoundly retarded woman in a persistent vegetative state would choose, were she competent, to terminate her nasoduodenal feeding and hydration. After hearing, the judge made careful, detailed written findings and concluded that the woman, Jane Doe (a pseudonym), would choose to do so. Doe’s parents agree with the judge’s determination. Doe’s permanent guardian (guardian), the guardian ad litem (GAL), and Doe’s physicians agree with the judge’s determination.¹ The Department of Mental Retardation (department), the agency responsible for Doe’s care, also supports the judge’s determination. Counsel for Doe, however, argues that we should vacate the judge’s order because the judge applied an incorrect standard of proof.² We-affirm the judgment.

I. Prior proceedings. In September, 1989, the department petitioned the Probate and Family Court Department to appoint a guardian to make medical decisions for Doe. Doe’s parents declined to be appointed guardians, and opposed a proposal to replace her nasoduodenal feeding and hydration tube with a surgically-implanted percutaneous endoscopic gastrostomy (PEG) tube.³ The judge appointed a GAL and counsel for Doe. Thereafter, the judge appointed a temporary guardian, and later the temporary guardian became Doe’s permanent guardian.

In May, 1990, Doe’s guardian filed a petition requesting the judge to authorize the “withdrawal of the nasoduodenal tube through which [Doe] is presently receiving hydration and nutrition.” On the same day, the GAL filed his third and final report with the court. In it, the GAL stated that “[t]here is no hope of either arresting or reversing [Doe’s] degenerative neurological disease. If the ultimate question is to only prolong the dying process of a persistent vegetative patient with no hope of regaining cognitive functioning, then . . . [Doe] would consent to the withholding of treatment including nutrition and hydration.”

The petition filed by Doe’s guardian asked the judge “to determine whether [Doe] is capable of making informed decisions regarding the continuation of her medical treatment including, but not limited to, the provision of hydration and nutrition by nasoduodenal tube.” The petition further requested the court, if it were to find that Doe was incompetent, to grant authority for “(1) [t]he withholding of invasive medical and surgical procedures; (2) [t]he withholding of life support medications and treatments, including, but not limited to, antibiotics; [and] (3) [t]he withdrawal of the nasoduodenal tube through which [Doe] is presently receiving hydration and nutrition.”

The judge held a hearing on June 8, 1990, to consider the guardian’s general petition. At the hearing, both the guardian and counsel for Doe agreed that Doe was incompetent, that she existed in a persistent vegetative state, and that there was no hope for improvement in her condition. The guardian also stated that Doe’s parents supported the petition.⁴ The judge allowed the petition and ordered termination of nasoduodenal feeding and hydration. Counsel for Doe appealed. We allowed his application for direct appellate review.

II. The medical facts. The medical facts are not in dispute and are as follows. Jane Doe is a thirty-three year old, profoundly retarded woman, who exists in a “persistent vegetative state.”⁵ Doe has been mentally retarded since infancy. Doe suffers from Canavan’s disease,⁶ which causes a progressive destruction of the central nervous system.⁷ There is no possibility that her condition will improve. In 1988, Doe’s doctors confirmed the diagnosis of Canavan’s disease by a biochemical test first used in 1986. Verification of the diagnosis is significant in that it establishes that there is no hope for a reversal of Doe’s condition.

Doe spent the first five years of her life at home with her parents and older brother. During the years Doe was at home, she was hospitalized repeatedly for a variety of ail-merits. In 1963, when Doe’s mother became pregnant with her third child,* ⁸ Doe was admitted to the Wrentham State School (Wrentham).

In 1982, Doe had severe difficulty swallowing and repeatedly aspirated food fed to her by conventional means. Doe’s physicians moved her to the Wrentham State School Medical Center (infirmary) and employed a nasoduodenal tube for feeding and hydration. Neither Doe nor her parents — nor, indeed, anyone — consented to the placement of the tube. Since 1982, Doe has received all her nutrition and hydration through the nasoduodenal tube.

Doe is dependent on die staff at Wrentham for all aspects of her care.⁹ Doe’s limbs are rigidly flexed, her joints contracted, her muscles atrophied and her bones extremely brittle. Doe breathes through a permanent tracheostomy necessitated by the tendency of her tongue to swell and block her. airway. Doe is incontinent of both bladder and bowel and requires regular catheterizations and enemas.

Doe displays no awareness of herself or her surroundings. Doe “carries out no volitional activity, nor does she show any cognitive response to any type of sensory stimulus” — including stimuli calculated to cause intense pain in a conscious individual.¹⁰ She exhibits no facial expressions and does not speak. She suffers from both cortical blindness and deafness, and she cannot feel or smell. Doe does not experience hunger or thirst; she is without emotion of any sort. Though her functioning brainstem allows Doe to breathe on her own by means of a tracheostomy, she suffers from “a total loss of cerebral functioning.”

III. The right to refuse treatment.¹¹ Competent individuals have the right to refuse medical treatment. Norwood Hosp. v. Munoz, 409 Mass. 116, 122 (1991). They have a concomitant right to discontinue medical treatment. Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 438 (1986).

The right to refuse treatment or to discontinue treatment is based on a person’s strong interest in being free from non-consensual invasions of the person’s bodily integrity. See Munoz, supra at 122-123; Brophy, supra at 430; Harnish v. Children’s Hosp. Medical Center, 387 Mass. 152, 154 (1982); Matter of Spring, 380 Mass. 629, 634 (1980); Commissioner of Correction v. Myers, 379 Mass. 255, 261 (1979); Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 738-739 (1977). See Cruzan, 110 S. Ct. 2841, 2846-2847 (1990). In re Storar, 52 N.Y.2d 363, 376-377, cert. denied, 454 U.S. 858 (1981); In re Quinlan, 70 N.J. 10, 38-42, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976). Because “the value of human dignity extends to both [competent and incompetent] individuals,” Saikewicz, supra at 745, incompetent individuals have the same rights as competent individuals to refuse and terminate medical treatment. Custody of a Minor (No. 3), 378 Mass. 732, 745 (1979). Saikewicz, supra at 736. The fact that a person is incompetent should not result in the denial of that person’s right to be free from nonconsensual invasions of bodily integrity. See Matter of Moe, 385 Mass. 555, 566 (1982).

The doctrine of substituted judgment is the means by which incompetents may exercise their right to refuse or terminate treatment. We have explained the doctrine in the following way. The judge, after hearing, must try to identify the choice “which would be made by the incompetent person, if that person were competent, taking into account the present and future incompetency of the individual as one of the factors which would necessarily enter into the decision-making process of the competent person.” Saikewicz, supra at 752-753.

Lack of a prior expressed intention regarding medical treatment does not bar use of the doctrine of substituted judgment. See Moe, supra at 566; Matter of Spring, supra at 640. Accord Foody v. Manchester Memorial Hosp., 40 Conn. Supp. 127 (1984); Guardianship of Barry, 445 So. 2d 365, 371 (Fla. App. 1984); Estate of Longeway, 133 Ill. 2d 33, 50 (1989). Cf. Guardianship of Weedon, 409 Mass. 196 (1991). We recognize that in situations in which there is an attempt to use substituted judgment for a never-competent person, it is a legal fiction. It is the legal mechanism by which society (at least in Massachusetts) attempts to vindicate liberty interests, albeit through a legal fiction. We are also aware that therefore “the substituted judgment [doctrine] is . . . difficult to apply.” Guardianship of Roe, 383 Mass. 415, 444 n.16 (1981). That difficulty, however, “provides inadequate justification for denying its benefits. . . .” Id. “While it may ... be necessary to rely to a greater degree on objective criteria [in the case of a never-competent person] ... the effort to bring the substituted judgment into step with the values and desires of the affected individual must not, and need not, be abandoned.” Saikewicz, supra at 751.¹²

IV. Findings as to substituted judgment. After a determination of incompetency has been made,¹³ there are five factors that judges must consider in substituting their judgment for that of incompetent people. They are: the patient’s expressed preferences; the patient’s religious convictions and their relation to refusal of treatment; the impact on the. patient’s family; the probability of adverse side effects; and the prognosis with and without treatment. See Brophy, supra at 427; Roe, supra at 444.

a. Patient’s preferences. In its effort to ascertain what Doe would choose for herself were she competent, the court below made a thorough inquiry into the nasoduodenal feeding and hydration treatment she receives. The judge found that a nasoduodenal tube is “intrusive” and that “[ejxtensive handling and manipulation of [Doe’s] body are themselves pervasive bodily intrusions.”

Because Doe “has never been in a position to make an informed decision for or against any kind of medical treatment,” the judge determined that the views of Doe’s parents were “the best mirror of [Doe’s] wishes,” had she ever been competent to form a preference.¹⁴

b. Impact on family. Doe’s parents are completely in accord with the guardian’s proposal to terminate treatment and the judge’s finding as to their daughter’s substituted judgment. The judge found that Doe’s parents were acting in “good faith” in asking for termination of medical treatment.¹⁵ See note 4, supra. The judge noted that Doe’s mother cared for her daily until the mother was beaten down by exhaustion with the birth of her third, also retarded, child. The judge noted that Doe’s mother always acted with “intelligence and compassion for her daughter.”

c. Religious beliefs. The judge noted that Doe has “never been in a position to acquire any religious beliefs” and, therefore, that she holds “[no] religious beliefs . . . that would” oppose the termination of nasoduodenal feeding and hydration. The judge also remarked that no one — including counsel for Doe — has identified any religious belief of either Doe or her family that would compel the continuation of tube feeding.

d. Prognosis and side effects. If her nasoduodenal tube is not removed, the judge found, the prognosis is an indefinite continuation of Doe’s persistent vegetative state. “If the hydration and nutrition treatment by tube is withdrawn,” the court explained, “then [Doe] would likely die of dehydration in a matter of days.” The medical evidence indicates that, because of Doe’s persistent vegetative state, she will not suffer the effects of dehydration. For the same reason, side effects of withdrawing treatment will cause Doe neither physical nor psychological discomfort.

V. The Commonwealth’s interests. In granting the guardian’s petition, the judge recognized that a ward’s right to refuse treatment through the exercise of substituted judgment is not absolute. See Munoz, supra at 125; Brophy, supra at 432, citing, inter alia, Myers, supra at 261-262; Saikewicz, supra at 740-741. Rather, it may be constrained by at least four important State interests: (1) the preservation of life; (2) the protection of innocent third parties; (3) the prevention of suicide; and (4) the maintenance of the ethical integrity of the medical profession. See Munoz, supra at 125; Brophy, supra at 432; Saikewicz, supra at 741; Matter of Spring, supra at 641; Matter of Hier, 18 Mass. App. Ct. 200, 210 (1984).

a. Preservation of life. The judge emphasized that the Commonwealth’s interest in preserving life is of vital importance. “The utmost caution,” the judge admonished, “will be required to insure that overriding State interests are appropriately addressed.” He nevertheless concluded that the Commonwealth’s interest in preserving life was not sufficient in this case to override Doe’s substituted judgment to refuse treatment.

The Commonwealth’s interest in preserving life is strongest when it is attempting to protect its citizens from abuse or infringement of their rights. Where, however, as here, the appellees are striving to vindicate Doe’s right to refuse invasive treatment, Doe’s “right to self determination must prevail over the State’s interest in preserving life for all.” Gray by Gray v. Romeo, 697 F. Supp. 580, 589 (D.R.I. 1988), citing Brophy, supra at 438-439. In re Gardner, 534 A.2d 947, 955 (Me. 1987). Because the judge found that, were she competent, Doe would refuse nasoduodenal feeding, the maintenance of the tube against Doe’s wishes “robs her of the right to determine her course of care.” Gray, supra at 589.

The judge noted that had he been confronted with a petition to initiate nasoduodenal feeding and hydration, he would have applied Doe’s substituted judgment to refuse such treatment. The judge reflected that, if the Commonwealth’s interest in preserving life could block removal of the tube in cases like this one, then physicians might refrain from using tubes initially in all but the clearest of cases. The judge concluded that this is a “medically undesirable” result. See Brophy, supra at 438, quoting Matter of Conroy, supra at 346-347 (“Such a rule could discourage families and doctors from even attempting certain types of care and could thereby force them into hasty and premature decisions to allow a patient to die”). See also 2 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions 75 (1982) (“An even more troubling wrong occurs when a treatment that might save or improve health is not started because the health care personnel are afraid that they will find it difficult to stop the treatment if, as is fairly likely, it proves to be of little benefit and greatly burdens the patient”).¹⁶

b. Prevention of suicide. Because Doe will commit no act, the court found that the Commonwealth’s interest in preventing suicide is not a consideration. It is well settled that withdrawing or refusing life-sustaining medical treatment is not equivalent to attempting suicide. See Munoz, supra at 125, citing Saikewicz, supra at 743 n.11; Brophy, supra at 439. Accord Conroy, supra at 350-351. Absent an intent to die, there can be no suicide. As we have previously held, a “death which occurs after the removal of life sustaining systems is from natural causes, neither set in motion nor intended by the patient.” Brophy, supra at 439, citing Rasmussen v. Fleming, 154 Ariz. 200, 204 (1986), quoting Welfare of Colyer, 99 Wash. 2d 114, 123 (1983). As the. judge noted, Doe has no ability to commit a volitional act.

The judge determined that Canavan’s disease, not the removal of the feeding and hydration tube, would be the death producing agent if the tube is removed. See Brophy, supra at 439. The judge in his findings stated that there is “[no] suggestion in any of the evidence that [Doe], her family, the Guardian, the [GAL] or staff at Wrentham would wish to commit or be involved in a suicide.”

c. Medical ethics. Finally, the judge noted that “[t]here appears to be no disagreement that the proposed course of action by the guardian does not undermine the integrity of the medical profession.”¹⁷ Medical ethics do not require health care professionals to preserve life in every circumstance. See Munoz, supra at 127; Brophy, supra at 439-440; Saikewicz, supra at 743-44. In reaching his decision, the judge relied on two neurological consultations, three reports of the GAL, and a review of the case by a Wrentham ethics committee. None of these evaluations contests the recommendation that nasoduodenal feeding and hydration be discontinued. Medical ethics therefore are in no way compromised by termination of this treatment.

VI. The judge’s determination. After carefully reviewing all the available evidence, and after visiting Doe personally, the judge determined that Doe’s “subjective judgment would be to request withdrawal or withholding of treatment” including nasoduodenal feeding and hydration.¹⁸

In his analysis of the legal issues, the judge concluded that the legal standard to be used as a guide in making his decision was “a ‘preponderance of the evidence’ with an ‘extra measure of evidentiary protection’ [by reason of] specific findings of fact after a ‘careful review of the evidence.’ ” Doe’s counsel asserts that the judge erred in using this standard. We do not agree. We are firmly convinced that the seriousness of the decision will be more forcefully impressed on judges if they are required to set forth their findings in “meticulous detail” than if they merely label their findings as meeting a particular standard. Custody of a Minor (No. 3), supra at 745. See Matter of Moe, supra at 572; Custody of a Minor (No. 1), 385 Mass. at 713; Roe, supra at 425; Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979). “[A]s every judge knows, to set down in precise words the facts as he finds them is the best way to avoid carelessness in the discharge of [one’s] duty: Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper.” Custody of a Minor (No. 1), 377 Mass. at 886, quoting United States v. Forness, 125 F.2d 928, 942 (2d Cir.), cert. denied sub nom. Salamanca v. United States, 316 U.S. 694 (1942). See Curtis v. Commissioner, 623 F.2d 1047 (5th Cir. 1980).

In Guardianship of Roe, 383 Mass. 405, 425 (1981), we said that, in cases involving important personal rights, “we have refused to apply either the ‘beyond a reasonable doubt’ standard or the ‘clear and convincing’ standard.” Rather, we have determined that “fact-finding is enhanced by requiring that it be done in writing and in meticulous detail.” This rationale clearly applies to substituted judgment determinations. We are confident that judges, mindful of the serious consequences following entry of substituted judgment orders, will enter such orders only after carefully considering the evidence and entering specific findings on each factor and then balancing the various interests. Id. What we require is careful work and reflection on the part of the judge before entering a substituted judgment order.

On appeal, counsel for Doe relies on cases that he claims require that the standard be clear and convincing evidence: Rogers v. Commissioner of the Dep’t of Mental Health, 390 Mass. 489 (1983) (administration of psychotropic medication to inpatient); Roe, supra (administration of antipsychotic medication to noninstitutionalized ward); Doe v. Doe, 377 Mass. 272 (1979) (civil commitment); Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271 (1978) (civil commitment); Santosky v. Kramer, 455 U.S. 745 (1982) (termination of parental rights); Addington v. Texas, 441 U.S. 418 (1979) (civil commitment); Woodby v. INS, 385 U.S. 276 (1966) (deportation).¹⁹ In each of these cases, however, the government sought to infringe on a citizen’s liberty interests. Here, by contrast, Doe’s guardian (as well as her parents) is attempting to determine Doe’s preference in order to vindicate Doe’s rights to bodily integrity and privacy. See Moe, supra at 572. We therefore conclude that the judge was correct in his ruling on the appropriate standard of proof.

In this case, the judge’s findings “make it manifest that the utmost care was devoted to the determination of [substituted judgment].” Custody of a Minor (No. 1), 377 Mass, at 886. After finding the facts and analyzing all the factors, the judge concluded that Doe’s “subjective judgment would be to request withdrawal or withholding of treatment.” The judge determined that, were Doe competent, she would wish to “go in peace.”

The judge’s decision and order are affirmed.

So ordered.

1 The judge appointed three attorneys to look out for Doe’s interests: a guardian ad litem, a permanent guardian, and counsel to represent her.

2 Doe’s counsel failed to raise this issue at trial and it is, therefore, not properly before us. See M.H. Gordon & Sons, Inc. v. Alcoholic Beverages Control Comm’n, 386 Mass. 64, 67 (1982), citing Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977); Trustees of the Stigmatine Fathers, Inc. v. Secretary of Admin. & Fin., 369 Mass. 562, 565 (1976); and Milton v. Civil Serv. Comm'n, 365 Mass. 368, 379 (1974). Because of the seriousness of the substituted judgment decision, -we comment on this issue. See infra at 523-525. See also Albert v. Municipal Court of City of Boston, 388 Mass. 491,'494 (1983).

3 In her letter to the staff declining to be appointed, Doe’s mother wrote that she “could foresee the day when [Doe’s parents] would be confronted by [this] situation, [in which their] opposing viewpoints [from that of the department’s social workers] would lead to a long and painful court fight for which [they did not have] the emotional strength.” The mother therefore declined to become Doe’s guardian. In the letter, Doe’s mother also objected to the PEG tube treatment. She added that she hoped that the Wrentham State School “would abide by [the parents’] wishes.”

4 The judge found that the parents and the GAL, as well as the guardian and the Wrentham State School, supported the petition in good faith “and not for administrative convenience. . . . There [was] not the slightest doubt in the [c]ourt’s mind in this regard. No such intimation has been advanced by [c]ounsel for [Doe] either.”

5 Doe “(a) shows no evidence of verbal or non-verbal communication; (b) demonstrates no purposeful movement or motor ability; (c) is unable to interact purposefully with stimulation provided by [her] environment; (d) is unable to provide for [her] own basic needs; [and] (e) [has] demonstrate [d] all of the above for longer than three months.” Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 421 n.4 (1986). These facts are consistent with the definition of persistent vegetative state used by the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 176-181 (1983).

6 Canavan’s disease is a genetic disorder. Its “salient clinical features are onset in early infancy, atonía of the neck muscles, hyperextension of the legs and flexion of [the] arms, blindness, severe mental defects and [megalocephaly].”

7 In addition to Canavan’s disease, Doe suffers from severe brain atrophy, cortical blindness, cortical deafness, flaccid quadriparesis with contracture of upper and lower extremities, seizure disorder, dysphagia with external feeding, permanent tracheostomy, chronic urinary tract infection, osteopenia, congenitally dislocated hips, and severe scoliosis.

8 The baby, a girl, also was retarded. In 1975, Doe’s sister died of bacterial pneumonia associated with Canavan’s disease.

9 After, a personal visit to Doe, the judge found that the care Doe receives at Wrentham “is remarkable; it is obviously dedicated, loving, and caring.”

10 Although Doe responds to stimuli to her legs, the report of the examining neurologist states that in his opinion these responses are purely “reflexive in nature.” Doe does not react at all to “noxious stimuli applied to her upper limbs.” Finally, the report noted “a total lack of affective (emotional) change accompanying noxious stimuli applied to either the lower limbs or the upper limbs.”

11 In this case no one contests that the nasoduodenal tube is medical treatment. Courts generally consider artificial hydration and nutrition, by nasoduodenal or gastrostomy tube, medical treatment. Brophy, supra at 437-438. See Cruzan v. Director, Mo. Dep’t of Health, 110 S. Ct. 2841, 2852, 2856-2857 (O’Connor, J., concurring), 2866-2867 (Brennan, J., dissenting) (1990) (Although the Supreme Court Justices wrote a number of opinions, eight of nine Justices agree that withdrawal of feeding and hydration is medical treatment); Gray by Gray v. Romeo, 697 F. Supp. 580, 587 (D.R.I. 1988); McConnell v. Beverly Enters. - Conn., Inc., 209 Conn. 692, 705 (1989); Corbett v. D‘Alessandro, 487 So. 2d 368, 371 (Fla. App. 1986); In re Estate of Longeway, 133 Ill.2d 33, 42 (1989); Matter of Sue Anne Lawrence, Ind. Sup. Ct., No. 29S04-9106-CV-00460 (1991); In re Gardner, 534 A.2d 947, 954-955 (Me. 1987); In re Conroy, 98 N.J. 321, 372-373 (1985); Delio v. Westchester County Medical Center, 129 App. Div. 2d 1, 18-19 (N.Y. 1987); In re Grant, 109 Wash. 2d. 545, 559-562 (1987), corrected by 757 P.2d 534 (Wash. 1988). See generally American Medical Association, Council on Ethics and Judicial Affairs, Opinion 2.18 (1986).

12 Some of these objective criteria are the same as those considered in the “best interests of the ward” test. “[T]he best interests analysis, like that of the substituted judgment doctrine, requires a court to focus on the various factors unique to the situation of the individual for whom it must act.” Custody of a Minor, 375 Mass. 733, 753 (1978). See Custody of a Minor (No. 1), 385 Mass. 697, 710 n.10 (1982); Custody of a Minor (No. 3), supra at 745. See also Guardianship of Linda, 401 Mass. 783, 785 (1988) (noting that while ward’s best interests are relevant to substituted judgment determination, “they are relevant only to the extent that the individual, if competent, would weigh them in deciding whether to accept treatment”).

13 The judge stated that “[i]t is beyond any question that [Doe] is incompetent to make an informed medical decision.”

14 The judge dismissed the argument of Doe’s counsel that, by exceeding the normal life expectancy of a patient with Canavan’s disease, Jane Doe demonstrates an unconscious will to live. Emphasizing the “lack of any evidence that [Doe] is able to comprehend or influence anything,” the judge correctly rejected that argument as logically and legally incorrect. Doe’s counsel misapprehends the doctrine of substituted judgment. Substituted judgment requires a judge to attempt to determine the decision “which would be made by the incompetent person, if that person were competent, but taking into account the present and future incompetency of the individual as one of the factors which would necessarily enter into the decision-making process of the competent person.” Saikewicz, supra at 752-753. See Munoz, supra at 122 n.3; Brophy, supra at 433. Substituted judgment is not based on subconscious nonvolitional actions.

15 The judge quite properly did not consider whether Doe’s continued care would pose a burden of any kind on anyone. The cost of care in human or financial terms is irrelevant to the substituted judgment analysis. Mr. Justice Nolan’s dissent, post, asserts that our opinion takes account of the burden of Doe’s continuing care. That assertion is incorrect.

16 The judge noted that the Commonwealth’s interest in protecting third parties was not present in Doe’s circumstances. See generally Munoz, supra at 129-130.

17 Medical personnel or Wrentham staff members who disagree with the withdrawal of the nasoduodenal feeding and hydration tube will not be required to care for Doe.

18 The order also placed on Doe’s caregivers the duties to continue all other aspects of her daily care, as well as requiring them to prevent chapped lips, dry skin, and other possible side effects.

19 In his brief, counsel for Doe also mischaracterizes the Cruzan case. The “precise” question before the Supreme Court was not “[t] he issue of standard of proof.” The precise question regarding standards of proof was “whether the United States Constitution forbids the establishment of the [clear and convincing evidence] requirement by the State” (emphasis added). Cruzan, supra at 2852. The Supreme Court held that it did not.

Doe’s counsel also cites termination-of-treatment cases decided by other courts. To the extent that those States limit their inquiry to express statements of preference, Matter of Westchester Medical Center on Behalf of Mary O'Connor, 72 N.Y.2d 517 (1988); McConnell v. Beverly Enters. - Conn., Inc., 209 Conn. 692 (1989), or do not use substituted judgment analysis, In re Swan, 569 A.2d 1202 (Me. 1990); Couture v. Couture, 48 Ohio App. 3rd 208 (1989); Gardner, supra, they are inapplicable.