Court Approval to Remove Feeding Tube In California

In Conservatorship of Drabick (1988) the conservator sought court approval to remove the nasogastric feeding tube of the PVS conservatee. No one opposed the action; the conservator simply wanted a court order to protect the health care providers. (Id. at p. 202.) A county public defender appointed to represent the conservatee agreed with the proposed termination of treatment. ( Id. at p. 212.) The probate court denied the conservator's petition on the ground that continued feeding was in the patient's best interests. (Id. at p. 193.) The conservator appealed. the state public defender who represented the conservatee on appeal took the position that the county public defender had not adequately represented the conservatee's interests and was required to advocate continued treatment. (Id. at p. 212.) The Sixth District reversed the probate court. In California, each adult "has a right to determine the scope of his own medical treatment," which includes "the legal right to refuse medical treatment," including artificial nutrition/hydration. ( Drabick, supra, 200 Cal. App. 3d at pp. 206, 218, fn. 40.) Drabick held "incompetent patients retain the right to have appropriate medical decisions made on their behalf. An appropriate medical decision is one that is made in the patient's best interests, as opposed to the interests of the hospital, the physicians, the legal system, or someone else." (Drabick, supra, 200 Cal. App. 3d at p. 205.) "Courts are not the primary decisionmakers in the area of medical treatment." (Id. at p. 197.) Other opinions echo this sentiment. Thus, "'A practice of applying to a court to confirm such decisions would generally be inappropriate, not only because that would be a gratuitous encroachment upon the medical profession's field of competence, but because it would be impossibly cumbersome . . . . This is not to say that in the case of an otherwise justiciable controversy access to the courts would be foreclosed; we speak rather of a general practice and procedure.'" (Barber v. Superior Court (1983) 147 Cal. App. 3d 1006, 1022, 195 Cal. Rptr. 484, quoting Matter of Quinlan (1976) 70 N.J. 10 [355 A.2d 647, 669].) 'Courts are not the proper place to resolve the agonizing personal problems that underlie these cases. Our legal system cannot replace the more intimate struggle that must be borne by the patient, those caring for the patient, and those who care about the patient.'. . . When a conservator desires removal of life-sustaining treatment, courts should intervene only if there is disagreement among the interested parties, and the court's role is confined to ensuring the conservator has complied with . . . section 2355 by making a good faith decision based on medical advice. . . . Courts should intervene only if there is disagreement among the conservator and other interested parties and they have exhausted all nonjudicial efforts to resolve the dispute." (Conservatorship of Morrison, supra, 206 Cal. App. 3d at p. 312 judicial intervention not appropriate where conservator failed to exhaust nonjudicial remedy offered by hospital of transferring patient to a facility which would comply with conservator's request to remove nasogastric feeding tube from vegetative conservatee.) Drabick observed that under section 2355, the conservator did not need to obtain judicial approval, absent disagreement among interested parties. Drabick said 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 withdrawn 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.) The common definition of "exclusive" authority refers to "sole, excluding others from participation, and vested in one person alone. (Webster's New Intern. Dict. (3d ed. 1986) p. 793; Black's Law Dict. (6th ed. 1990) p. 564, col. 1.)" ( Department of Social Services v. Superior Court (1977) 58 Cal. App. 4th 721, 733 [Legislature granted Department of Social Services exclusive custody, control and supervision of child referred for adoptive placement].) The probate court will review a conservator's proposed decision if there is a dispute among interested parties, or if the conservator seeks confirmation of a proposed action. ( 2359; Drabick, supra, 200 Cal. App. 3d at p. 204 [ 2359 permits any interested person to invoke judicial oversight when there is reason to question the conservator's decision].) Thus, as a practical matter, the court will become involved only if, e.g., there is a family dispute, or a doctor demands judicial confirmation or a conservator seeks judicial confirmation as a precaution. Drabick, supra, 200 Cal. App. 3d 185, said: "If the conservator or any other interested person does invoke judicial supervision, the court's role will be limited to determining whether the conservator's decision complies with . . . section 2355, subdivision (a). . . . the section requires a conservator to decide (1) based upon medical advice (2) whether treatment is necessary; section 2355 also requires a decision made (3) in good faith. As a general proposition, "Good faith, or its absence, involves a factual inquiry into the plaintiff's subjective state of mind: Did he or she believe the action was valid? What was his or her intent or purpose in pursuing it? a subjective state of mind will rarely be susceptible of direct proof; usually the trial court will be required to infer it from circumstantial evidence." (Knight v. City of Capitola (1992) 4 Cal. App. 4th 918, 932.) "The phrase 'good faith' in common usage has a well-defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation." (People v. Nunn (1956) 46 Cal. 2d 460, 468, 296 P.2d 813.)