Mack v. Mack

618 A.2d 744, 329 Md. 188, 1993 Md. LEXIS 11

Opinions

RODOWSKY, Judge.

This case involves an application to withhold nutrition and hydration administered through a gastrostomy tube to a previously competent,, adult, hospital patient who has been in a persistent vegetative state since June 1983, but who is not terminally ill. Because the evidence was inconclusive concerning any intent that the patient had, or would have, concerning the continuation or withholding of artificial nutrition and hydration under these circumstances, the circuit court concluded that Maryland law did not authorize the withholding of life support. As we explain below, we agree.

The patient is Ronald W. Mack (Ronald), born July 11, 1962. He is a high school graduate. He and the appellant, Deanna Mack (Deanna), were married in November 1980. They have two children who live with their mother. In November 1982, Ronald enlisted in the Army. While stationed in California, in June 1983, he was involved in an automobile accident in which he suffered massive brain injuries. He never regained consciousness after the accident.

Ronald was weaned off of a respirator, but he has remained in a persistent vegetative state. His biological bodily functions continue because his brain stem is intact, but his cerebral hemispheres are so damaged that he is incapable of cognitive activity. The distinguishing feature of a patient in a persistent vegetative state is wakefulness without awareness. These patients commonly make sporadic movements, spontaneously blink their eyes, and have heightened reflex responses, but they cannot voluntarily respond to stimuli.

Ronald was transferred from California in September 1983 to the Fort Howard Veterans’ Hospital in Baltimore County to be closer to his family. In addition to his wife and children, Ronald’s immediate family includes his father, a widower, the appellee, Ronald E. Mack (Ronald, pére), and Ronald’s younger sister, Karen Mack Carson, both of whom live within twenty minutes driving time of the hospital. Ronald has remained at Fort Howard Hospital to date.

Over the years of inactivity, the muscles in Ronald’s arms and legs have become moderately spastic. His legs are straight and resist bending, while his arms are flexed, with the hands clenched, and resist straightening. Ronald is incontinent of bowel and bladder. He has a tracheotomy through which his lungs’ secretions are periodically suctioned. He is unable to chew or to swallow; therefore, he is fed through the gastrostomy tube.¹ The circuit court found that, in Ronald’s case, there is “no medically reasonable expectation of recovery or cognitive movement,” and that “Ronald is not experiencing pain.”

In May 1984, Deanna was appointed guardian of Ronald’s person by the Circuit Court for Baltimore County.

Deanna moved to Florida with the two children in September 1984. She had met another man who moved to Florida with her where they lived together for five to six years. Deanna’s third child was born in October 1985 out of that relationship.

Acting on the advice of the Veterans Administration and for its convenience, Deanna, in October 1985, obtained ap pointment as guardian of Ronald’s person by decree of the Circuit Court for Marion County, Florida. She was discharged as guardian under the Maryland appointment by order of the Circuit Court for Baltimore County in December 1985.

After moving to Florida, Deanna has visited Ronald three to four times a year. Ronald’s sister testified that she visits him “regularly” at Fort Howard Hospital. Ronald, pére, testified that he visits his son usually once a week, with occasional intervals of two weeks between visits.

Sometime prior to May 11, 1991, Deanna learned through conversation with a registered nurse that it might be possible to have Ronald’s gastrostomy tube removed. She consulted counsel in Florida. On May 11, a Saturday, Ronald, pére, and Mrs. Carson, acting pro se, filed with the United States District Court for the District of Maryland a paper that the court treated as a complaint and application for a temporary restraining order against the Veterans Administration. The two complainants alleged that Deanna was seeking to have a state court in Florida order the Veterans Administration to transfer Ronald to a veterans hospital in Florida where she would petition to have the court consider removal of life support from Ronald. The federal court in Maryland granted the requested ex parte order and, after a hearing, entered a preliminary injunction maintaining the status quo, pending determination of whether Deanna was the duly authorized guardian of the person of Ronald.

Ronald, pére, then petitioned the Circuit Court for Baltimore County for appointment as guardian of Ronald’s person, and Deanna filed a cross petition seeking either confirmation of her guardianship status, based on the Florida decree, or appointment by the Maryland court. The circuit court promptly held a hearing. Ronald, pére, arguing that his appointment as guardian was in Ronald’s best interest, emphasized the proximity of Ronald’s father and sister to Fort Howard Hospital. The circuit court ruled that the Florida decree appointing Deanna as guardian was not entitled to full faith and credit because the Florida court had no jurisdiction over Ronald’s person. The circuit court also determined to appoint a temporary guardian, naming Edward J. Gilliss, who had served as appointed counsel for Ronald. The permanent guardianship appointment was to be made at a later date, and, according to a prehearing letter sent from the circuit judge to the litigants, would “be based on a number of factors, most notably, the withdrawing of sustenance.”

In pretrial memoranda, Deanna argued, inter alia, that the Circuit Court for Baltimore County should order withdrawal of Ronald’s feeding tube. That issue was treated as the principal one at the full hearing in this case, although that relief had never been requested in a pleading.

In a written opinion that exhaustively reviewed the authorities, the circuit court concluded that, absent either a living will or a power of attorney for health care, the decision to withhold sustenance should be based on what intent Ronald had, or would have, as determined under a clear and convincing standard of proof. On those aspects of the case, the circuit court concluded:

“The underlying facts, produced through testimony, concerning the life and statements of Ronald W. Mack, prior to the accident, are not that remarkable or unexpected. Through his father and sister, who desire to hold onto his life, there is recollection of a Ronald who loved life, who would hold onto life, and who had thanked his father for attempting to keep his mother alive at a time she had experienced a cerebral hemorrhage, even though that probably would have meant that his mother would have survived only in a vegetative state. From Deanna Mack, there is recollection of an incident, when the couple visited Ronald’s infirm grandmother, that he commented he would not want to live if he could not do for himself. He had also expressed to Deanna his gratefulness that a friend had died and did not have to suffer, when that friend had been shot. There was testimony that Ronald hated hospitals, doctors, medicine, and confinement. Deanna points to his love of life and sports as an indication he would not want to live in his present unconscious and confined state.

“The conflicting and non-definitive testimony, recollection and impression from various individuals, eight years ago, does not convince the court, of what intent Ronald W. Mack had or would have if faced with the situation which presently confronts him.

“Accepting the truth of all of the statements made, this court is unable to attribute to any one of them or all of them a probative value dispositive of the issue, one way or the other, by clear and convincing evidence. If anything, the evidence produces a stalemate. Nothing in the content or context of the evidence makes it reliable as an indicator of what Ronald would elect to do were he faced with the plight that now confronts him.”

Because Ronald is not in pain, the circuit court would not base a decision on its own view of whether Ronald’s interest would be better served by continuing or withholding sustenance, and the court would not base a decision on its view of what reasonable persons generally might think was in Ronald’s best interest.

Although recognizing that Deanna, as Ronald’s spouse, was accorded a priority for appointment as guardian of Ronald by Md.Code (1974, 1991 Repl.Vol.), § 13-707(a) of the Estates and Trusts Article (ET), the circuit court appointed Ronald, pére, as guardian. The court explained that this was “because it is the father of the ward who will carry into effect the applicable law of Maryland which requires the disabled’s life to be continued through the administration of food and water.” Inasmuch as Deanna had stated her intention not to continue artificial nutrition and hydration, “[h]er known and avowed desires are not consistent with the objectives and directives of Maryland law[,] and the court cannot repose its confidence in her by appointing her as Guardian.”

Deanna appealed to the Court of Special Appeals. Prior to consideration of the matter by that court, she petitioned this Court for, and we issued, a writ of certiorari.

In addition to briefs on behalf of Deanna and of Ronald, pere, the attorney for Ronald has filed a brief as appellee, supporting the circuit court decision in all respects. Legal Aid Bureau, Inc. has filed an amicus brief urging this Court to adopt guidelines for determining when life support can be withdrawn from a patient in a persistent vegetative state, but no specific guidelines are urged in that brief. Doctor Timothy James Keay, of the University of Maryland Sohool of Medicine, has filed an amicus brief urging Deanna’s appointment as guardian and urging the adoption of guidelines. Dr. Keay submits, inter alia, that current medical ethics permit discontinuing feeding Ronald through the gastrostomy tube.

The State, through the Attorney General of Maryland, has also filed an amicus brief. The State advocates the position taken in two opinions of the Attorney General that have addressed the legal questions involved in withholding sustenance both from terminally ill patients and from patients in a persistent vegetative state. 75 Op.Att’y Gen.—(1990) [Op. No. 90-044 (Sept. 24, 1990)], reprinted in 17:22 Md.Reg. 2635 (Nov. 2, 1990), and 73 Op. Att’y Gen. 162 (1988). Applying the principles adopted in those opinions, the Attorney General submits that the circuit court’s refusal to appoint Deanna as guardian was error, but that the court’s use of a clear and convincing standard and its refusal to make a best interest evaluation were correct.

From all of the briefs and arguments, we distill the following four legal issues.

1. Is the order of the Florida court appointing Deanna guardian of the person of Ronald entitled to full faith and credit?

We shall hold that the order is not entitled to full faith and credit.

2. Did the circuit court base its refusal to honor Deanna’s statutory priority for appointment as guardian of Ronald on a ground that constituted good cause?

We shall hold that the basis relied upon by the circuit court did not constitute good cause.

3. Did the circuit court err in applying a clear and convincing standard of proof to determine Ronald’s intent?

We shall hold that the correct standard was applied.

4. Should the issue of withdrawal of life support be remanded to the circuit court for the determination of Ronald’s best interest under guidelines laid down by this Court?

We shall hold that, under the circumstances here, the so-called “best interest” standard for withdrawal of life support involves a quality-of-life judgment which, if it is to be made at all, should be made only under guidelines established by the General Assembly.

I

The mandate of Art. IV, § 1 of the United States Constitution, requiring courts in each state to accord full faith and credit to judgments of courts in other states, is not absolute. A court, for example, need not give full faith and credit to a judgment that was rendered by a court lacking jurisdiction. Underwriters Nat’l Assurance Co. v. North Carolina Life & Accident & Health Ins. Guar. Assoc., 455 U.S. 691, 704, 102 S.Ct. 1357, 1366, 71 L.Ed.2d 558, 570 (1982); Durfee v. Duke, 375 U.S. 106, 110, 84 S.Ct. 242, 244, 11 L.Ed.2d 186, 190 (1963); Van Wagenberg v. Van Wagenberg, 241 Md. 154, 160, 215 A.2d 812, 815, cert. denied, 385 U.S. 833, 87 S.Ct. 73, 17 L.Ed.2d 68 (1966). It is proper for a forum court to examine the jurisdiction of the deciding court to determine whether the foreign judgment must be accorded full faith and credit. Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 342, 85 L.Ed. 278, 282-83 (1940); Van Wagenberg, 241 Md. at 160, 215 A.2d at 815; Coane v. Girard Trust Co., 182 Md. 577, 580, 35 A.2d 449, 451 (1944).

Jurisdiction to appoint a guardian over the person of an incompetent or disabled individual lies with the state where that individual is domiciled or present. Restatement (Sec ond) of Conflict of Laws § 79 (1971);² see E. Scoles & P. Hay, Conflict of Laws § 22.27, at 881 (1984). Morrissey v. Rodgers, 137 Kan. 626, 21 P.2d 359 (1933), held that Kansas courts would not be required to give full faith and credit to a Nebraska court’s guardianship determination if the ward was domiciled in Kansas at the time the Nebraska judgment was rendered. The Nebraska court would have been without jurisdiction to render judgment in the guardianship proceeding. Id. at 632-33, 21 P.2d at 362; see Henry v. Edde, 148 Kan. 70, 73-74, 79 P.2d 888, 891 (1938).

The state in which a ward is domiciled has primary jurisdiction to appoint a guardian because that state’s interest in protecting the ward is strong, and because that state is the “most deeply concerned with his welfare.” Restatement (Second) of Conflict of Laws § 79, cmt. a (1971); Scoles & Hay, supra, § 22.27, at 881. If a ward is physically present within a state, that state has an interest in protecting, and direct access to, the ward, and therefore has jurisdiction over guardianship matters if there is some immediate need to protect the ward. Restatement (Second) of Conflict of Laws § 79, cmt. a (1971); Scoles & Hay, supra, § 22.27, at 881.

Although Maryland appellate courts have not spoken on jurisdiction in the guardianship context, cases dealing with jurisdiction in child custody matters are analogous. See M. Paulsen & J. Best, Appointment of a Guardian in the Conflict of Laws, 45 Iowa L.Rev. 212, 212 (1960) (“The jurisdictional principles governing the appointment of a guardian of the person are similar to those employed in deciding whether a state may award the custody of a child.” (Footnote omitted)). This Court has said that “a state court has jurisdiction to determine custody of a child only if the domicile of the child is within the state.” Miller v. Miller, 247 Md. 358, 362, 231 A.2d 27, 30 (1967); see Naylor v. Naylor, 217 Md. 615, 626-28, 143 A.2d 604, 608-10 (1958) (refusing to give full faith and credit to a custody determination of a Nevada court on lack of jurisdiction grounds because the children were domiciled in Maryland); Zouck v. Zouck, 204 Md. 285, 301-02, 104 A.2d 573, 580-81 (1954). Quoting from Nelson on Divorce § 15.32, at 287 (2d ed. 1945), Miller stated:

“ ‘A proceeding to determine custody of a minor child partakes of the nature of an action in rem, the res, or the subject matter, being the child’s status or his legal relationship to another. If the court does not have jurisdiction of the children it does not have jurisdiction of the subject matter to determine the right to custody____’”

247 Md. at 363, 231 A.2d at 30.

Inasmuch as the state of Ronald’s domicile has always been Maryland, under the jurisdictional analysis of this status determination that looks at the problem from the standpoint of an action in rem, Florida did not have jurisdiction.

Deanna’s arguments have as their premises in personam jurisdictional analyses. She submits that the Florida court had personal jurisdiction over Ronald based on her consent to Florida’s jurisdiction, given while she was court-appointed guardian in Maryland. She also submits that Ronald had sufficient minimum contacts with Florida.

The relationship of guardian to ward is not that of agent to principal. Parker v. Wilson, 99 Ark. 344, 345, 137 S.W. 926, 926 (1911). The guardian’s authority is not derived from the ward, but from the appointing court for which the guardian acts as agent, exercising those powers conferred by statute or by the court. Thus, Deanna, simply by virtue of having been named guardian of Ronald by the Maryland court, could not appear in a Florida court and consent, for Ronald, to the exercise by the Florida court of jurisdiction over the person of Ronald.

We described the relationship between court and guardian in Kicherer v. Kicherer, 285 Md. 114, 400 A.2d 1097 (1979): “In reality the court is the guardian; an individual who is given that title is merely an agent or arm of that tribunal in carrying out its sacred responsibility.” Id. at 118, 400 A.2d at 1100. The administration of guardianship affairs remains subject to judicial control by the equity court that appointed the guardian. Id. at 119, 400 A.2d at 1101.

ET § 13-708 limits the powers of a guardian to those “necessary to provide for the demonstrated need of the disabled person.” Here, although it may have been more convenient or advantageous for Deanna or the Veterans Administration to proceed in a Florida court, the Maryland guardianship court did not determine Ronald’s “need” to submit to the jurisdiction of the Florida court. Had Deanna sought to change Ronald’s place of abode “within [or] without the State [of Maryland],” an order of the Circuit Court for Baltimore County would have been required. ET § 13-708(b)(2). Thus, Deanna, by her unilateral consent, could not place Ronald’s person under the jurisdiction of the court of another state while Ronald remained in Maryland as a ward of a Maryland court.

We shall assume, arguendo, the validity of Deanna’s premise that minimum contacts between a ward and a state, sufficient to support in personam jurisdiction over the ward in an action, will also be sufficient for appointment of a guardian of the person. But, Ronald’s contacts are insufficient. Ronald never lived in the State of Florida. There is no evidence that he ever intended to live in Florida. Rather, Deanna argues that because she, Ronald’s wife, and his children live in Florida and because his veterans benefits checks are mailed to Florida, Florida could exercise personal jurisdiction over him. The minimum contacts test of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945), rests on “ ‘traditional notions of fair play and substantial justice.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 (1985), held that, to be subject to a foreign court’s jurisdiction, nonresidents must have purposefully-availed themselves of the privilege of conducting activity within that state and of the benefits and protection of the laws of that state. This requirement “ensures that a [nonresident] will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts or of the ‘unilateral activity of another party or a third person.’ ” Id. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d at 542 (citations omitted).

Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), demonstrates the absence of personal contact or purposeful availment here. The parties in Kulko had entered into a divorce settlement and child custody agreement in New York and procured a divorce in Haiti. The wife moved to California, and the husband and children remained in New York. After the children decided to move to California to live with their mother, she brought suit in a California court to modify custody. Id. at 87-88, 98 S.Ct. at 1694, 56 L.Ed.2d at 138. The husband argued that the California court did not have personal jurisdiction over him. The Supreme Court agreed, concluding that “the mere act of sending a child to California to live with her mother ... connotes no intent to obtain or expectancy of receiving a corresponding benefit in the State that would make fair the assertion of that State’s judicial jurisdiction.” Id. at 101, 98 S.Ct. at 1701, 56 L.Ed.2d at 147.

Given that Ronald could not consent to their change of abode, the presence of his wife and children in Florida does not give Florida courts jurisdiction over him. Further, the fact that his benefit check arrives in Florida may be grounds for a Florida court to exercise jurisdiction over those funds, see Shaffer v. Heitner, 433 U.S. 186, 207-08, 97 S.Ct. 2569, 2581-82, 53 L.Ed.2d 683, 699-700 (1977), but it does not give the Florida courts jurisdiction over his person. Cf. In re Guardianship of Sail, 59 Wash. 539, 548, 110 P. 32, 36 (1910).

The Florida court judgment appointing Deanna guardian of the person of Ronald is not entitled to full faith and credit.

II

Even if the Florida appointment of Deanna as guardian is not entitled to full faith and credit, Deanna argues that she is entitled to be appointed guardian under the priorities set forth in ET § 13-707(a) and that there was not good cause for passing over her priority and appointing Ronald, pére, guardian. Section 13-707(a), in relevant part, provides:

“Persons are entitled to appointment as guardian of the person according to the following priorities:

(1) A person ... nominated by the disabled person ...;

(2) His spouse;

(3) His parents[.]”

Subsection (c)(1) of § 13-707 further provides:

“Among persons with equal priority the court shall select the one best qualified of those willing to serve. For good cause, the court may pass over a person with priority and appoint a person with a lower priority.”

Kicherer, 285 Md. 114, 400 A.2d 1097, addressed a petition for guardianship of the person of an incompetent adult that was filed after the enactment, by the Acts of 1977, Chapter 768, of ET § 13-707. We recognized that “consanguinity is a factor that may well be given consideration by the chancellor in the appointment of a guardian because nearest of kin are more likely to treat a ward with kindness and affection,” citing, inter alia, ET § 13-707. Kicherer, 285 Md. at 119, 400 A.2d at 1100-01. Nevertheless, we said that “all the parties here should be reminded that appointment to that position rests solely in the discretion of the equity court.” Id,., 400 A.2d at 1101. A statutory preference in the appointment of a guardian, although seemingly mandatory and absolute, is always subject to the overriding concern of the best interest of the ward. Marsh v. Hoff, 15 Ark.App. 272, 692 S.W.2d 270, 272 (1985); Monroe v. Dallas, 6 Ark.App. 10, 636 S.W.2d 881, 883 (1982); In re Guardianship and Conservatorship of Ankeney, 360 N.W.2d 733, 736-37 (Iowa 1985); In re Guardianship of T.D.S. and J.L.S., 13 Kan.App.2d 275, 769 P.2d 32, 33-34 (1989); Brown v. Storz, 710 S.W.2d 402, 405 (Mo.App.1986).

Here, there was no finding whether Deanna could or would fulfill the duties of guardian. There was no finding on Ronald, pere’s, contention that his geographical proximity to Ronald weighted the best interest scale in favor of appointing the father as guardian.³ Rather, the circuit court merged the issue of whether sustenance could be withdrawn into the issue of who should be guardian. Because the court concluded that Maryland law required sustenance to be continued, the court concluded that Deanna’s desire to have sustenance withdrawn constituted good cause to pass over Deanna’s statutory priority and to appoint Ronald, pere. That assigned reason does not constitute good cause.

Where there is a guardian for a disabled person, it is not within the exclusive power of the guardian to effect withdrawal of sustenance.⁴ ET § 13-708 at the time of the judgment below, in relevant part, provided:

“(a) In general.—The court may grant to a guardian of a person only those powers necessary to provide for the demonstrated need of the disabled person.

(b) Nonexclusive enumeration of permissible powers.—Subject to subsection (a) of this section, the rights, duties, and powers which the court may order include, but are not limited to:

(8) The power to give necessary consent or approval for:

(i) Medical or other professional care, counsel, treatment, or service;

(ii) Withholding medical or other professional care, counsel, treatment, or service; and

(iii) Withdrawing medical or other professional care, counsel, treatment, or service.

(c) Medical procedures.—Notwithstanding the powers conferred to a guardian under subsection (b)(8) of this section, where a medical procedure involves, or would involve, a substantial risk to the life of a disabled person, the court must authorize a guardian’s consent or approval for:

(1) The medical procedure;

(2) Withholding the medical procedure; or

(3) Withdrawing the medical procedure that involves, or would involve, a substantial risk to the life of the disabled person.”

As we shall see in Part IV, infra, court decisions dealing with withdrawing artificially administered nutrition and hydration from a patient who is in a persistent vegetative state analogize the legality of the withdrawal to the cessation of medical treatment for a terminally ill patient. It is beyond dispute that more than a substantial risk to the life of the patient in a persistent vegetative state is involved when the feeding tube is withdrawn. Under those circumstances, the guardian cannot effect withdrawal of the treatment solely by virtue of appointment as guardian.

Maryland law, particularly ET § 13-708(c), recognizes, however, that a guardian of the person may apply to a court to have medical procedures withheld even if a substantial risk to life is involved.⁵ Thus, there is no conflict between Maryland law and Deanna’s effort to obtain court approval for the withholding of sustenance. Deanna’s views are consistent with the statutory requirement. Her views recognize the need, under the circumstances here, for court approval. Her views are not per se disqualifying from appointment as guardian, although the court may consider them as a factor in an overall determination.⁶

Inasmuch as the circuit court did not address the other arguments advanced by the parties on the issue of who should be guardian, but decided the issue by treating Deanna as disqualified, the order appointing Ronald, pére, as guardian will be vacated, and that issue will be remanded to the Circuit Court for Baltimore County for further proceedings consistent with this opinion.

There remains for decision, however, what is in effect Deanna’s application, viewed either as the spouse of Ronald or as a spouse seeking guardianship, for court approval to have artificially administered sustenance withheld from Ronald.

III

The circuit court correctly held that the burden was on Deanna to prove, by clear and convincing evidence, that Ronald’s judgment was, or would be, that life-sustaining measures should be withdrawn were he to be in a persistent vegetative state.

States may constitutionally require that proof of the critical facts in cases involving the withholding or withdrawal of life-sustaining medical treatment meet the clear and convincing standard. Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 282, 110 S.Ct. 2841, 2854, 111 L.Ed.2d 224, 245-46 (1990). Nancy Cruzan was in a persistent vegetative state. Relying on Missouri’s policy of strongly favoring the preservation of life, and concluding that the patient’s statements were not sufficiently reliable to indicate clearly and convincingly her desires, the Supreme Court of Missouri had reversed an order permitting the cessation of sustenance. The Supreme Court found no constitutional violation, on the following rationale:

“We think it self-evident that the interests at stake in the instant proceedings are more substantial, both on an individual and societal level, than those involved in a run-of-the-mine civil dispute. But not only does the standard of proof reflect the importance of a particular adjudication, it also serves as ‘a societal judgment about how the risk of error should be distributed between the litigants.’ Santosky [v. Kramer ], 455 U.S. [745,] 755, 102 S.Ct. [1388,] 1395[, 71 L.Ed.2d 599, 607 (1982)]; Addington [v. Texas ], 441 U.S. [418,] 423, 99 S.Ct. [1804,] 1807-1808[, 60 L.Ed.2d 323, 329 (1979) ]. The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision. We believe that Missouri may permissibly place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual’s life-sustaining treatment. An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient’s intent,, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction.”

Id. at 283, 110 S.Ct. at 2854, 111 L.Ed.2d at 245.

This Court has held that “in any tort case a plaintiff must establish by clear and convincing evidence the basis for an award of punitive damages.” Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 469, 601 A.2d 633, 657 (1992). “Any” tort case includes the run-of-the-mine. Under Wentzel v. Montgomery Gen. Hosp., Inc., 293 Md. 685, 703, 447 A.2d 1244, 1253-54 (1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 790, 74 L.Ed.2d 995 (1983), the clear and convincing evidence standard applies to proof of facts justifying sterilization of an incompetent ward at the request of the guardian. No lesser standard should be applied to deciding facts that will determine whether to withdraw life-sustaining treatment from a patient.

Further, the overwhelming majority of cases involving requests to withdraw sustenance from a person in a persistent vegetative state have required the proponent of withholding or withdrawing life support to bear the burden of proving by clear and convincing evidence that the ward’s decision would have been to forego life support. And we so hold as well. See, e.g., Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674, 691 (1987); McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 553 A.2d 596, 605 (1989); In re Guardianship of Browning, 543 So.2d 258, 273 (Fla.Dist.Ct.App.1989), aff'd, 568 So.2d 4 (Fla.1990); In re Estate of Greenspan, 137 Ill.2d 1, 146 Ill.Dec. 860, 868, 558 N.E.2d 1194, 1202 (1990); In re Estate of Longeway, 133 Ill.2d 33, 139 Ill.Dec. 780, 788, 549 N.E.2d 292, 300 (1989); In re Swan, 569 A.2d 1202, 1206 (Me.1990); In re Gardner, 534 A.2d 947, 953 (Me.1987); Cruzan v. Harmon, 760 S.W.2d 408, 425 (Mo.1988), aff'd sub nom. Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); In re Jobes, 108 N.J. 394, 529 A.2d 434, 443 (1987); In re Peter, 108 N.J. 365, 529 A.2d 419, 425 (1987); In re Westchester County Medical Ctr., 72 N.Y.2d 517, 534 N.Y.S.2d 886, 891, 531 N.E.2d 607, 612 (1988); In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 274, 420 N.E.2d 64, 72, cert. denied sub nom. Storar v. Storar, 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153 (1981); Leach v. Akron Gen. Medical Ctr., 68 Ohio Misc. 1, 22 O.O.3d 49, 426 N.E.2d 809, 815 (Com.P1.1980). But see In re Guardianship of Doe, 411 Mass. 512, 583 N.E.2d 1263, 1271, cert. denied sub nom. Doe v. Gross, — U.S. -, 112 S.Ct. 1512, 117 L.Ed.2d 649 (1992) (upholding the following standard: “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”).

Deanna vigorously argues that the playing field should not, in all cases, be tilted in favor of “life” and against “death,” recognizing that “[t]his grim dichotomy seems to leave little room for debate on the issue.” Appellant’s Brief at 35. Deanna argues that the “issue is whether [Ronald] will have a vegetative existence for the next three or four decades helplessly dependent on others, without any pleasure .... Thus, the quality of his very existence is at stake.” Id. at 36. Deanna “submits that this grim, degrading result cannot be one that public policy, however defined, can be deemed to favor,” so that “this court should not enhance it by adopting an unusual standard of proof.” Id.

Deanna’s argument, in essence, would have the standard of proof vary, based on the quality of life of the patient. Whether a court, in the absence of legislative guidelines, should undertake to evaluate the quality of the ward’s life is a question which we answer, in the negative, in Part V.

IY

Measured against the developing body of law concerning withdrawing life support from terminally ill patients, or from patients in a persistent vegetative state, the facts in this case are determinative. That conclusion can be demonstrated by an overview of the law on this subject. We shall simply sketch the path of general reasoning from the basic right to the particular application sought here by Deanna.

This Court recognizes the doctrine of informed consent as part of the common law. The doctrine “follows logically from the universally recognized rule that a physician, treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient.” Sard v. Hardy, 281 Md. 432, 438-39, 379 A.2d 1014, 1019 (1977). “The fountainhead of the doctrine ... is the patient’s right to exercise control over his own body, ... by deciding for himself whether or not to submit to the particular therapy.” Id. at 439, 379 A.2d at 1019. A corollary to the doctrine is the patient’s right, in general, to refuse treatment and to withdraw consent to treatment once begun.⁷

Some courts have held that a person’s right to refuse treatment is based on a federal or state constitutional right of privacy. See, e.g., Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674, 682 (1987) (federal and state); Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297, 301 (1986) (federal and state); In re Severns, 425 A.2d 156, 158 (Del.Ch.1980) (federal); In re A.C., 573 A.2d 1235, 1244-47 (D.C.1990) (federal); In re Guardianship of Browning, 543 So.2d 258, 267 (Fla.Dist.Ct.App.1989) (state), aff'd, 568 So.2d 4 (Fla.1990); Brophy, 497 N.E.2d at 633 (federal); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 424 (1977) (federal); In re Quinlan, 70 N.J. 10, 355 A.2d 647, 663 (federal and state), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976); Leach v. Akron Gen. Medical Ctr., 68 Ohio Misc. 1, 22 O.O.3d 49, 426 N.E.2d 809, 814 (Com.P1.1980) (federal); In re Colyer, 99 Wash.2d 114, 660 P.2d 738, 742 (1983) (federal and state). Although the United States Supreme Court’s decision in Cruzan, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224, made no holding on the subject, all of the justices, save Justice Scalia, either flatly stated or strongly implied that a liberty interest under the Fourteenth Amendment gives rise to a constitutionally protected right to refuse life saving hydration and nutrition. See id. at 278, 110 S.Ct. at 2851, 111 L.Ed.2d at 241-42; id. at 287, 110 S.Ct. at 2856, 111 L.Ed.2d at 247-48 (O’Connor, J., concurring); id. at 304-05, 110 S.Ct. at 2865, 111 L.Ed.2d at 257 (Brennan, Marshall, and Blackmun, JJ., dissenting); id. at 331, 110 S.Ct. at 2879, 111 L.Ed.2d at 275 (Stevens, J., dissenting).

In the case now before us, there is no issue that turns on whether the right to refuse treatment is a constitutional or common-law right. It is sufficient for present purposes to decide this case under the Maryland common-law right of a competent adult to refuse treatment. For cases in which the court found no need to opine beyond a common-law analysis, see Barber v. Superior Court, 147 Cal.App.3d 1006, 195 Cal.Rptr. 484 (1983); In re Estate of Longeway, 133 Ill.2d 33, 139 Ill.Dec. 780, 549 N.E.2d 292 (1989); In re Gardner, 534 A.2d 947 (Me.1987); In re Peter, 108 N.J. 365, 529 A.2d 419 (1987); In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985); In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied sub nom. Storar v. Storar, 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153 (1981); In re Delio, 129 A.D.2d 1, 516 N.Y.S.2d 677 (1987).

Patients who are unable to exercise the right to refuse treatment for themselves, nevertheless still enjoy the right. See Browning, 543 So.2d at 267; Brophy, 497 N.E.2d at 634; Saikewicz, 370 N.E.2d at 427; Peter, 529 ; Conroy, 486 A.2d at 1229; Storar, 438 N.Y.S.2d at 273-74, 420 N.E.2d at 71-72; see also 73 Op.Att’y Gen. 162, 175-78 (1988).

The General Assembly has recognized the continuing nature of the right to refuse treatment. Chapter 709 of the Acts of 1990 expressly provided that the right may be exercised on behalf of a disabled person by that person’s guardian and, specifically, “where a medical procedure involves, or would involve, a substantial risk to the life of a disabled person,” the right may be exercised by the guardian with court authorization. ET § 13-708(c). The statute does not, however, supply the standards or guidelines for a court’s exercise of the power to grant or withhold authorization.

Even before one reaches the issue of guidelines or standards, the question logically arises whether the withdrawing of artificially administered nutrition and hydration was legislatively intended to be within the “[withdrawing [of] medical or other professional care, counsel, treatment, or service,” referred to in ET § 13—708(b)(8)(iii) and whether that cessation constitutes the “[withdrawing [of] the medical procedure” under ET § 13-708(c)(3). Although no party or amicus to the present proceedings has raised the issue, it must be addressed because Ronald, as a ward of the court, is entitled to plenary protection of the court. The history of a related enactment, the living will statute, makes clear that care, counsel, treatment, service, and procedure in § 13-708 include artificial nutrition and hydration.

The living will statute, also called the Life-Sustaining Procedures Act, was enacted by Chapter 620 of the Acts of 1985 “after twelve years of effort.” W. Kronmiller, Comment, A Necessary Compromise: The Right to Forego Artificial Nutrition and Hydration Under Maryland's Life-Sustaining Procedures Act, 47 Md.L.Rev. 1188, 1207 (1988). The statute is codified as Md.Code (1982, 1990 Repl.Vol.), §§ 5-601 through 5-614 of the Health-General Article (HG). HG § 5-605 provides, in part, that “[t]he declaration of a qualified patient to withhold or withdraw life-sustaining procedures may not be implemented: (1) [b]y the denial of food, water, or of such medication and medical procedures as are necessary to provide comfort care and to alleviate pain.”

In the 1988 opinion, the Attorney General interpreted this provision “to mean that a declaration calling generally for the withholding of life-sustaining procedures may not itself serve as the basis for withholding artificially administered sustenance.” 73 Op.Att’y Gen. at 181. That opinion also recognized that foregoing artificially administered sustenance is controversial, in that “[s]ome regard [artificial feeding] as no different in ethical principle than the non-medical means of sustaining life that must always be provided, for to do otherwise would deprive patients of the ordinary care all persons are entitled +o receive.” Id. at 178. Without joining the ethical or religious doctrine debate, the Attorney General found the legal analysis “clear” and noted that “[e]very appellate court that has addressed the issue has held that there is no difference as a matter of law between artificially administered sustenance and other forms of life-sustaining treatment.” Id. at 179.⁸ Against the foregoing background, the unqualified language used by the General Assembly in the 1990 amendment of ET § 13-708(b)(8) and (c) stands in stark contrast. Absent a statutory exclusion of artificially administered sustenance from the medical treatment or procedure referred to in § 13-708, artificially administered sustenance is included in those terms.⁹

Where court authorization is sought to withdraw from an incompetent person artificially administered sustenance, viewed as a medical treatment, the standard to apply is determined by the right for which judicial protection is sought. The right is one of self-determination, but, if the person who enjoys the right is in a persistent vegetative state, that person cannot make the determination. To protect the right for incompetent persons, and to permit its exercise, courts apply a rule of “substituted judgment.”

From the standpoint of initiating a request to withdraw life-sustaining treatment, the judgment of the guardian or applicant for guardianship is truly substituted for that of the ward. But, from the standpoint of whether the treatment is to be withdrawn, the “substituted judgment” label is a misnomer. The judgment of the guardian is not accept ed by the court in lieu of the judgment of the ward. Rather, because the right is one of self-determination, the inquiry focuses on whether the ward had determined, or would determine, that treatment should be withdrawn under the circumstances of the case.

In the instant matter, there is no living will that specifically refers to artificially administered sustenance. Cf. 73 Op.Att’y Gen. at 182. Nor did Ronald execute a medical, durable, power of attorney. Cf id. at 183-84. Accordingly, the inquiry focuses on whether Ronald, while competent, sufficiently had evidenced his views, one way or the other, to enable the court to determine, by clear and convincing evidence, what Ronald’s decision would be under the present circumstances. This inquiry is a particular application of a familiar judicial task, that of determining a person’s state of mind, based on the evidence, and relating that state of mind to an applicable legal standard. Here, that standard is akin to informed consent.

The scope of the evidence that may be received in the inquiry is as wide as the concepts of relevance and materiality are to the state of mind issue. Oral, as well as written, statements of the ward, made prior to the ward’s incompetency, should be considered. Evidence of this character will include any actual, expressed intent or desire to have artificial sustenance withdrawn, but the evidence is not limited to specific, subjective intent evidence. The patient’s “ ‘philosophical, religious and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering and death’ ” should be explored. Jobes, 529 A.2d at 445 (quoting Newman, Treatment Refusals for the Critically Ill: Proposed Rules for the Family, the Physician and the State, 3 N.Y.L.Sch., Human Rights Annual 45-46 (1985)). These guidelines “should aid in ascertaining [the patient’s] desires and in reaching a decision” based upon clear and convincing evidence. Longeway, 549 N.E.2d at 300.

In some cases the evidence will be direct. For example, in McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 553 A.2d 596 (1989), the patient in a persistent vegetative state was a registered nurse whose last nursing positions were as head nurse and manager of the emergency room at a hospital. “She had, in fact, expressly and repeatedly told her family and her co-workers that, in the event of her permanent total incapacity, she did not want to be kept alive by any artificial means, including life-sustaining feeding tubes.” 553 A.2d at 599. Even more forceful is the evidence in In re Severns, 425 A.2d 156, in which the patient who was in a persistent vegetative state had not only expressed her intent not to be kept alive under those circumstances, but she had become “an active member of the Delaware Euthanasia Education Council.” Id. at 158. In other cases, the court must make its findings as a matter of inference from all of the evidence. That inference must be closely connected to the clear evidence presented. The patient in Brophy, 398 Mass. 417, 497 N.E.2d 626, was a person who, like Ronald, had been a healthy, robust man who enjoyed outdoor activity. Brophy was stricken by the rupture of an aneurysm, which left him in a persistent vegetative state. The Supreme Judicial Court of Massachusetts sustained the finding of the trial judge who had inferred from all of the evidence that “if presently competent, Brophy would choose to forgo artificial nutrition and hydration by means of a [gastrostomy] tube.” 497 N.E.2d at 632. The appellate court collected the factors considered by the trial judge and classified them as including:

“(1) Brophy’s expressed preferences; (2) his religious convictions and their relation to refusal of treatment; (3) the impact on his family; (4) the probability of adverse side effects; and (5) the prognosis, both with and without treatment. The judge also considered present and future incompetency as an element which Brophy would consider in his decision-making process.”

Id. at 631.¹⁰

In contrast, the evidence in the instant matter is conflicting. The trial judge found that “[i]f anything, the evidence produces a stalemate.” The circuit court was “unable to attribute to any one of [the statements made by Ronald] or all of them a probative value dispositive of the issue, one way or the other, by clear and convincing evidence.” These fact-findings are not clearly erroneous. This is a case in which we do not know what decision, if any, the patient had made or would make. Deanna has not met the burden of proof, requiring clear and convincing evidence of Ronald’s desire to have the feeding tube removed.

V

Deanna submits that the inquiry should not end where the circuit court left it. She turns back against the Attorney General strong statements from that official’s amicus brief:

“The Attorney General correctly observes that [Ronald’s] condition for the next thirty or so years is ‘indeed an appalling’ one. He is ‘utterly without the capacity for self-awareness or awareness of the environment.’ The only existence he has is as the ‘subject of bodily intrusions that ... are humiliating and undignified.’ Furthermore, he forces others around him to wait on him and perpetuate his condition. He is condemned to life without hope of improvement and without any sensation of positive value.”

Reply Brief of Appellant at 6.

Deanna argues that “[wjhen the direct and indirect indicia of a disabled’s intent are unclear, the last resort must be to what a reasonable person in [the patient’s] situation would want.” Id. at 7. The facts here, she asserts, satisfy that criterion. The term, “best interest,” is used to describe the legal test that looks at whether the patient’s state of existence is such that a court would conclude that no reasonable person would want existence continued.

A best interest test applied to Ronald or to any patient who is in a persistent vegetative state, who is not in pain, and who is not terminally ill, requires this Court to make a quality-of-life judgment under judicially adopted standards, without any legislative guidelines. There are many reasons why it is not appropriate for this Court to do so.

A best interest argument in the subject context presents a complete shift in the substantive legal justification for a court’s action. Best interest is not based on the patient’s right of self-determination as to whether treatment should be received or rejected, because the absence of any conclusion as to the patient’s judgment on that issue is precedent to applying the best interest analysis.

“The problem with the best-interests test is that it lets another make a determination of a patient’s quality of life, thereby undermining the foundation of self-determination and inviolability of the person upon which the right to refuse medical treatment stands.”

In re Estate of Longeway, 133 Ill.2d 33, 139 Ill.Dec. 780, 787, 549 N.E.2d 292, 299 (1989). “ ‘One does not exercise another’s right of self-determination ... by making a decision which the state, the family, or public opinion would prefer. The surrogate decisionmaker must be confident that he or she can and is voicing the patient’s decision.’ ” In re Guardianship of Browning, 568 So.2d 4, 13 (Fla. 1990) (quoting In re Browning, 543 So.2d 258, 269 (Fla.Dist.Ct.App.1989)). Contra, see, e.g., In re Guardianship of L.W., 167 Wis.2d 53, 482 N.W.2d 60, 70 (1992). Abandoning the anchorage of the patient's right of self-determination sets courts adrift on a sea of conflicting values and of varying weights to be assigned to those values. Where the values themselves are in a state of flux in society, a legislative body is better equipped to determine, within constitutional limits, whether some lives are not worth living and, if so, how to determine which are the lives that are not worth living.

Nor is this Court prepared to declare, as part of the common law of Maryland, that the feeding of the irreversibly comatose should be stopped, without regard to the patient’s desires, on the theory that it is in the best interest of such patients to die. The type of best interest analysis that Deanna urges would require a change in Maryland common law. In Wentzel v. Montgomery Gen. Hosp., Inc., 293 Md. 685, 447 A.2d 1244 (1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 790, 74 L.Ed.2d 995 (1983), we considered an application by co-guardians to have a hysterectomy performed on an incompetent minor ward for the purpose of sterilization. The circuit court’s refusal to authorize the surgery was affirmed. As part of the rationale, we said that “in considering the best interests of an incompetent minor, the welfare of society or the convenience or peace of mind of the ward’s parents or guardian plays no part.” 293 Md. at 704-05, 447 A.2d at 1254. From Ronald’s individual standpoint, his needs are met, and he may live for decades. The best interest, i.e., reasonable person, standard that Deanna seeks enlarges the concept of best interest beyond the needs of the ward to include consideration of the emotional and financial impact on, and desires of, Ronald’s family and of the burden on the limited resources of society. But we are by no means confident that there exists on this quality-of-life question the degree of societal consensus that this Court ordinarily requires before announcing a change in the common law. See State v. Minster, 302 Md. 240, 245, 486 A.2d 1197, 1199 (1985) (refusing to abrogate “year and a day” bar to murder prosecution because of the “great difference of opinion surrounding the appropriate length of the period”).

The preamble to the living will statute also gives pause to effecting so substantial a change by judicial proclamation. In that preamble, the General Assembly declared, inter alia, that the act was “intended to ensure that such basic measures as nursing care, nutrition, and hydration will be maintained out of respect for the human dignity of every patient.” 1985 Md.Laws at 2945. Although courts and medical ethicists equate the withholding of artificially administered sustenance to the removal of a respirator, the foregoing legislative declaration indicates that at least a substantial segment of society in this State does not accept that nutrition and hydration should be withheld from a living person who has not personally made that judgment. Methods are available to the Legislature, but not to this Court, for determining what society currently accepts in regard to the administration of artificial sustenance to a patient in a persistent vegetative state.

Further, in the 1988 opinion, the Attorney General commented on the best interest test as follows:

“Patients who are permanently unconscious pose a difficult problem for application of the best interest standard. According to medical experts, someone who is permanently unconscious does not experience suffering, either physically or emotionally. Nor is the person capable of experiencing any of life’s satisfactions. The balancing of costs and benefits to the patient that a surrogate must undertake for a terminally ill patient cannot be done in the same way for a patient who is permanently unconscious.”

73 Op.Att’y Gen. 162, 189-90 (1988); see In re Peter, 108 N.J. 365, 529 A.2d 419, 425 (1987) (“a benefits-burden analy sis ... is essentially impossible with patients in a persistent vegetative state”). After reviewing medical authority supporting, as medically ethical, the withholding of artificially administered sustenance from the permanently comatose patient, the Attorney General concluded:

“Still, we are very reluctant to conclude that the best interest standard, properly applied, takes into account anything other than the patient’s actual interest alone.”

73 Op.Att’y Gen. at 190. Thus, when the General Assembly returned to the subject of withholding or withdrawing life-sustaining treatment by the 1990 amendments to ET § 13-708(b)(8) and (c), it is unlikely that the Legislature contemplated that the courts would authorize the withdrawal of artificially administered sustenance to a ward in a persistent vegetative state based on a best interest-reasonable person interpretation of the statute.

Were this Court to conclude that it was not in Ronald’s best interest to live, we would be doing much more than simply applying to the facts of Ronald’s case a general equitable principle governing decisions concerning a ward of a court. Having concluded that Ronald’s individual intent is unknown, a conclusion that it is in Ronald’s best interest to die would be based on his existence in a persistent vegetative state. That being the precedent, artificially administered sustenance should be withheld from all persons in a persistent vegetative state whose actual desires concerning the administration of such sustenance are unknown. Examination of that precedent would reveal that persons in a persistent vegetative state have no cognition and cannot take care of themselves. As a logical progression from that precedent, cases eventually would be presented submitting that the best interest of the most severely retarded and feebleminded, who require extended care, who have practically no cognition, and who are too disabled to feed themselves, would be to have sustenance withheld.¹¹ The question of whether to adopt a quality of life-best interest standard concerns our societal values in a most fundamental sense. The answer to that question is quintessentially legislative.

Unless and until current public policy, as we perceive it, is changed by the General Assembly, sustaining Ronald and other persons like him, whose desires concerning the withdrawal of artificial sustenance cannot clearly be determined, is a price paid for the benefit of living in a society that highly values human life.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED IN PART AND VACATED IN PART. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS TO DETERMINE A GUARDIAN OF THE PERSON FOR RONALD W. MACK. FIFTY PERCENT OF THE COSTS OF THE PARTIES TO BE PAID BY THE APPELLANT AND FIFTY PERCENT BY THE APPELLEES.

Dissenting opinion by McAULIFFE, J., in which MURPHY, C.J., joins.

Footnotes

1

. Joanne Lynn, M.D., who served as an Assistant Director of the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, has described the medical interventions for providing food and fluids. She writes:

“The medical interventions that provide food and fluids are of two basic types. First, liquids can be delivered by a tube that is inserted into a functioning gastrointestinal tract, most commonly through the nose and esophagus into the stomach or through a surgical incision in the abdominal wall and directly into the stomach. The liquids used can be specially prepared solutions of nutrients or a blenderized version of an ordinary diet. The nasogastric tube is cheap; it may lead to pneumonia and often annoys the patient and family, sometimes even requiring that the patient be restrained to prevent its removal.

“Creating a gastrostomy is usually a simple surgical procedure, and, once the wound is healed, care is very simple. Since it is out of sight, it is aesthetically more acceptable and restraints are needed less often. Also, the gastrostomy creates no additional risk of pneumonia. However, while elimination of a nasogastric tube requires only removing the tube, a gastrostomy is fairly permanent, and can be closed only by surgery.

"The second type of medical intervention is intravenous feeding and hydration, which also has two major forms. The ordinary hospital or peripheral IV, in which fluid is delivered directly to the bloodstream through a small needle, is useful only for temporary efforts to improve hydration and electrolyte concentrations. One cannot provide a balanced diet through the veins in the limbs: to do that requires a central line, or a special catheter placed into one of the major veins in the chest. The latter procedure is much more risky and vulnerable to infections and technical errors, and it is much more costly than any of the other procedures. Both forms of intravenous nutrition and hydration commonly require restraining the patient, cause minor infections and other ill effects, and are costly, especially since they ordinarily require the patient to be in a hospital.”

J. Lynn & J. Childress, Must Patients Always Be Given Food and Water?, The Hastings Center Report, Oct. 1983, at 17, 18.

2

. The Restatement position also includes, as a third alternative jurisdiction, a state that has jurisdiction over the parties competing for custody. Florida clearly does not fit within the third alternative under the facts of this case.

3

. In the absence of a statute to the contrary, a nonresident may be appointed guardian. See Countryman v. Henderson, 17 Ariz.App. 218, 496 P.2d 861, 864 (1972); Ramirez v. Garcia de Bretado, 547 S.W.2d 717, 718 (Tex.Civ.App.1977). However, appointment of a resident is preferred. See Rosin v. United Cal. Bank, 226 Cal.App.2d 166, 37 Cal.Rptr. 830, 833-34 (1964); In re Guardianship of Boutz, 24 Cal.App.2d 644, 76 P.2d 154, 157 (1938).

4

. We emphasize that this case does not deal with a terminally ill patient who has neither a living will nor a durable power of attorney, who has no guardian, and whose family and health care providers are in agreement about the use or discontinuance of life-sustaining measures.

5

. In Parts IV and V we set forth the analyses that a court may and may not use in an application to withdraw sustenance under the facts presented in this case. ET § 13-708(c) also applies to applications by a guardian for court authorization of a medical procedure that would involve a substantial risk to the life of the ward when the object of the procedure is to attempt to save the life of the ward. Under those circumstances, in the case of a comatose ward, the analysis under ET § 13-708(c) would be different, because of the bias of the law in favor of life. See Part III, infra.

6

. ET § 13-708(b)(2) provides that a circuit court may include in an order appointing a guardian of the person a provision empowering the guardian "to establish [the ward's] place of abode within and without the State, provided there is court authorization for any change in abode.” Thus, another factor for the circuit court’s consideration is that, if Deanna were appointed guardian, she could not arrange Ronald’s transfer to Florida without the approval of the Circuit Court for Baltimore County. Indeed, the circuit court could include the substance of the above-quoted statutory provision in an order appointing Deanna guardian, should the circuit court choose to exercise its discretion in that fashion.

7

. We qualify this holding by the words, “in general," because the cases uniformly recognize that the right is not absolute. It is subject to

“at least four countervailing State interests: (1) the preservation of life; (2) the protection of interests of innocent third parties; (3) the prevention of suicide; and (4) the maintenance of the ethical integrity of the medical profession.”

Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 497 N.E.2d 626, 634 (1986) (citing numerous cases).

8

. The Attorney General cited Barber, 195 Cal.Rptr. at 490; Corbett v. D'Alessandro, 487 So.2d 368, 371 (Fla.Dist.Ct.App.), review denied, 492 So.2d 1331 (Fla. 1986); Gardner, 534 A.2d at 954; In re Jobes, 108 N.J. 394, 529 A.2d 434, 444 n. 9 (1987); Peter, 529 A.2d at 427; Conroy, 486 A.2d at 1236; Delio, 516 N.Y.S.2d at 689; In re Guardianship of Grant, 109 Wash.2d 545, 747 P.2d 445, 454 (1987). Following an “[a]ccord" signal, the Attorney General cited In re Drabick, 200 Cal.App.3d 185, 245 Cal.Rptr. 840, cert. denied sub nom. Drabick v. Drabick, 488 U.S. 958, 109 S.Ct. 399, 102 L.Ed.2d 387 (1988); Bouvia, 225 Cal.Rptr. at 306; and Brophy, 497 N.E.2d at 637.

For additional cases holding that the provision of artificially administered sustenance is a medical procedure or treatment, see, e.g., Cruzan, 497 U.S. at 288, 110 S.Ct. at 2857, 111 L.Ed.2d at 248 (O’Connor, J., concurring); id. at 307-08, 110 S.Ct. at 2866, 111 L.Ed.2d at 260 (Brennan, Marshall, and Blackmun, J.T., dissenting); Gray v. Romeo, 697 F.Supp. 580, 587 (D.R.I.1988); In re Guardianship of Browning, 568 So.2d 4, 11-12 (Fla.1990); In re Estate of Greenspan, 137 Ill.2d 1, 146 Ill.Dec. 860, 867, 558 N.E.2d 1194, 1201 (1990); Longeway, 139 Ill.Dec. at 784, 549 N.E.2d at 296; In re Lawrance, 579 N.E.2d 32, 40-41 (Ind.1991); In re Guardianship of L.W., 167 Wis.2d , 482 N.W.2d 60, 66-67 (1992). But cf. Cruzan v. Harmon, 760 S.W.2d 408, 423-24 (Mo.1988), aff’d sub nom. Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990).

9

. In opinion No. 90-044 of September 24, 1990, 75 Op.Att’y Gen.—, reprinted in 17:22 Md.Reg. 2635 (Nov. 2, 1990), the 1990 amendment to ET § 13-708(b) and (c) was analyzed as a' response to In re Riddlemoser, 317 Md. 496, 564 A.2d 812 (1989). In that case, a circuit court had concluded that it had no power to authorize a “Do Not Resuscitate" order sought by a guardian for an incompetent ward. This Court did not decide that question of interpretation of the pre1990 version of the statute, because the case had become moot upon the death of the ward. The Attorney General considers the 1990 amendment to § 13-708 as a response to the questions raised by the circuit court in Riddlemoser. See 75 Op.Att’y Gen. at — [No. 90-044 at 41]. We note that in Riddlemoser we commented, in dicta, that “the withdrawal of respiratory life-support or a gastric feeding tube is the termination of already existing medical treatment." 317 Md. at 504 n. 5, 564 A.2d at 816 n. 5.

10

. The precise evidence in Brophy is also instructive. As set forth at 497 N.E.2d at 632 n. 22, the evidence was as follows:

“About ten years ago, discussing Karen Ann Quinlan, Brophy stated to his wife, T don’t ever want to be on a life-support system. No way do I want to live like that; that is not living.’ He had a favorite saying: ‘When your ticket is punched, it is punched.’ Approximately five to six years ago, he helped to rescue from a burning truck a man who received extensive burns and who died a few months later. He tossed the commendation he received for bravery in the trash and said, T should have been five minutes later. It would have been all over for him.’ He also said to his brother regarding that incident, 'If I’m ever like that, just shoot me, pull the plug.’ About one week prior to his illness, in discussing a local teenager who had been put on a life support system he said, ‘No way, don’t ever let that happen to me, no way.’ Within twelve hours after being transported to Goddard Hospital following the rupture of the aneurysm, he stated to one of his daughters, ‘If I can’t sit up to kiss one of my beautiful daughters, I may as well be six feet under.’ ”

11

. The extreme illustration of the "slippery slope” argument is presented in Alexander, Medical Science Under Dictatorship, The New England Journal of Medicine, Vol. 241, No. 2, at 39 (July 14, 1949). The article describes the annihilation of whole segments of the population and the so-called "medical” experiments on live and conscious prisoners under Nazi Germany. Dr. Alexander then summed up with these words:

"Whatever proportions these crimes finally assumed, it became evident to all who investigated them that they had started from small beginnings. The beginnings at first were merely a subtle shift in emphasis in the basic attitude of the physicians. It started with the acceptance of the attitude, basic in the euthanasia movement, that there is such a thing as life not worthy to be lived. This attitude in its early stages concerned itself merely with the severely and chronically sick. Gradually the sphere of those to be included in this category was enlarged to encompass the socially unproductive, the ideologically unwanted, the racially unwanted and finally all non-Germans. But it is important to realize that the infinitely small wedged-in lever from which this entire trend of mind received its impetus was the attitude toward the nonrehabilitable sick.”

Id. at 44 (emphasis added).