Conservators Right to Decide About Medical Treatment In California

In Conservatorship of Drabick (1988) the patient's prior informal statements, made while competent, as to his wishes regarding medical treatment have some, but only "limited relevance." (Drabick, supra, 200 Cal. App. 3d at p. 210, 245 Cal. Rptr. 840.) "While a conservator may consider the conservatee's known preferences together with all other information bearing on the conservatee's best interests, a conservator with no such information still has the right and duty to make treatment decisions." (Ibid.) The conservator "has the exclusive right and duty under section 2355 to determine in good faith whether medical treatment is necessary. Under Barber, '"the focal point of decision"' for a persistently vegetative patient '"should be the prognosis as to the reasonable possibility of return to cognitive and sapient life, as distinguished from the forced continuance of that biological vegetative existence . . . ." (Drabick, supra, 200 Cal. App. 3d at pp. 210-211.) "The apparent role of the conservatee's prior statements under existing law is this: the conservatee's prior statements inform the decision of the conservator, who must vicariously exercise the conservatee's rights. Such statements do not in themselves amount to the exercise of a right [except where the statements are formal written documents under statutes providing for advance directive]. The statute [section 2355] gives the conservator the exclusive authority to exercise the conservatee's rights, and it is the conservator who must make the final treatment decision regardless of how much or how little information about the conservatee's preferences is available. There is no necessity or authority for adopting a rule to the effect that the conservatee's desire to have medical treatment withheld must be proved by clear and convincing evidence or another standard. Acknowledging that the patient's expressed preferences are relevant, it is enough for the conservator, who must act in the conservatee's best interests, to consider them in good faith." (Drabick, supra, 200 Cal. App. 3d at pp. 211-212.) Drabick summarized: "California law gives persons a right to determine the scope of their own medical treatment, this right survives incompetence in the sense that incompetent patients retain the right to have appropriate decisions made on their behalf, and . . . section 2355 delegates to conservators the right and duty to make such decisions." (Drabick, supra, 200 Cal. App. 3d at p. 205.) "Acknowledging that the patient's expressed preferences are relevant, it is enough for the conservator, who must act in the conservatee's best interests, to consider them in good faith." (Drabick, supra, 200 Cal. App. 3d at p. 212.) In general, courts and commentators have identified a hierarchy of tests for surrogate decisionmaking to withhold life-sustaining medical treatment for patients who lack capacity to make their own decisions. (See generally, President's Com. for Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment, Rep. on Ethical, Medical and Legal Issues in Treatment Decisions, (Mar. 1983) ch. 5, p. 192, fn. 52 [hereafter cited as "Report of President's Commission"] 1 Meisel, the Right to Die (2d ed. 1995) 7.2-7.3, pp. 343-352.) These tests include: (1) a purely subjective test which requires proof that the patient, if he were competent, would have made the same decision as the surrogate under the circumstances. (2) If there is not enough proof of the patient's direct wishes, a combined subjective and objective test would be applied, which combines indirect evidence of the patient's wishes with consideration of his best interests, i.e., there is some trustworthy evidence the patient would have refused treatment, and the decisionmaker is satisfied that the burdens of continued life outweigh the benefits for the patient. (3) If there is no evidence at all of the patient's wishes, a purely objective "best-interests" test applies, under which the decision is based on deciding whether the burdens of continued treatment outweigh the benefits. The best interests standard is grounded in the state's parens patriae power, rather than the individual's common law or constitutional right to self-determination. (See, In re Martin (1995) 450 Mich. 204, 221-222 [538 N.W.2d 399, 408]; Report of President's Commission, supra, at p. 135, fns. omitted.) the Michigan Supreme Court in In re Martin, supra, noted that in the cases that applied or endorsed a more objective test, the patient was generally comatose or PVS. ( Id. 450 Mich. at p. 223 [538 N.W.2d at p. 408-409].) Drabick expressly qualified its decision in a footnote: "This opinion's reasoning is predicated upon its subject being a patient for whom there is no reasonable hope of a return to cognitive life. We have not considered any other case, and this opinion would not support a decision to forego treatment if this factual predicate could not be satisfied." (Drabick, supra, 200 Cal. App. 3d at p. 217, fn. 36.)