Wendland Update

Dana Cody

[The following is a summary of the 71-page decision of the California Third District Court of Appeals written by Justice Sims, concurred by Justices Morrison and Scotland, Presiding Justice, in the matter of The Conservatorship of Robert Wendland. The trial court (San Joaquin County Superior Court) prevented Rose Wendland (Robert’s wife and conservator) from removing Robert Wendland’s feeding tube. Robert is conscious and cognitively disabled. Rose and Robert’s appointed defender (?!) each moved to appeal the trial court’s decision.]

The crux of the appeal is the power Rose Wendland possesses in making ‘medical decisions’ for Robert. The court starts by discussing the power a conservator has in making medical decisions for the conservatee, declaring that Probate Code section 2355 gives the conservator (here, Rose Wendland), the exclusive right to remove a feeding tube, even though the conservatee is not in a permanent unconscious state. “A choice to withdraw medical treatment does not amount to assisting a suicide, because the cause of death is considered to be the underlying disease or medical condition, not the withdrawal of life-sustaining treatment.”

At page 32 of the decision, the court states that they agree with Rose Wendland’s position that section 2355 is not limited to patients who are ‘PVS’ (permanent vegetative state). To bolster their position, the court cites Conservatorship of Drabick (1988) 200 Cal.App.3d, 185, a case which allowed removing the feeding tube of a permanently unconscious man. Calling Drabick “thoughtful”, the court points out that a conservator need not obtain judicial approval, absent disagreement among the interested parties, to stop ‘medical treatment.’ The court distinguishes the case by pointing out that Robert is conscious and that there is a disagreement among the family. However, it must be pointed out that nutrition and hydration via feeding tube is considered ‘medical treatment’ in California.

It is here that the court launches into its discussion of the good faith standard by which such a decision should be made. Again citing Drabick, the court points out that the patient’s prior informal statements, made while competent, as to preference with respect to medical treatment are only given “limited relevance.” Then the court opines that there is no clear and convincing standard as it relates to showing what the now incompetent patient/conservatee (here Robert) would want. The message here is you better have an advanced directive that is perfectly clear. Absent such, the conservator can make decisions about medical treatment in the name of the right to refuse it, pretty much as they please, since the right survives the patient’s competency and someone has to exercise that right.

After a tortured discussion about Robert’s chances of returning to a cognitive and sapient life, the appeal court reverses the trial court decision, and remands the case to finish trial, using the clear and convincing evidence standard to determine whether or not Rose Wendland acted in good faith based upon medical advice.Whether or not Robert would want to be dehydrated and starved to death is of limited relevance; it just need be in his best interest. Therefore, it is now a question of intent, a guessing game if you will. All this in light of the court’s discussion that the right to life is not given preference over the patient’s right to refuse medical treatment, which is grounded in the right to privacy.

The court acknowledges that allowing the surrogate the “right to choose” to stop life-sustaining medical treatment is legal fiction, at best, but still, someone has to exercise the patient’s right. “Thus, . . . we agree . . . that a guardian’s withdrawal of life-sustaining treatment from a ward does not constitute a deprivation of life; rather it allows the disease to take its natural course.” One question comes to mind in Robert’s case. What disease? Is it now a disease to be disabled and in need of special care?

Those who accused the pro-life movement of being “alarmist” when concerns were expressed in the wake of Roe v. Wade that we were headed down a slippery slope were plainly wrong. Similar concerns were also expressed when our State Legislature defined medical treatment to include nutrition and hydration. Sounding an alarm to a clear and present danger cannot simply be dismissed as reactionary and uninformed “alarmism.” The decision to petition the California Supreme Court, or to go to trial to present Florence Wendland’s case has not yet been made. As Lifeline goes to print, the appeal court’s decision in this case can be accessed at http://www.courtinfo.ca.gov in the ‘opinion’ section at Conservatorship of Robert Wendland.