'Involuntary Euthanasia' Testing the Law's Limits
STOCKTON, Calif.—Robert Wend-land is unique among other patients who are targeted by tube-removal cases.
He is conscious and interactive and, according to his wife and sister, he doesn't want to die. But Wendland may have no choice in the matter.
“The question now is whether or not the state of California will permit a conscious man to be dehydrated to death because he is retarded,” said Wesley J. Smith, a California attorney who has followed the case closely since it began several years ago. He has filed an amicus brief warning about the dangers to profoundly disabled people should Robert be allowed to die.
A feeding tube has been keeping Wendland alive since a 1993 car accident rendered him severely brain-damaged and unable to feed himself.
His wife, Rose Wendland, gave the okay to Lodi Memorial Hospital to remove the tube. The 20 members of the hospital ethics committee agreed, unanimously. Robert was almost left to starve.
But when an anonymous nurse informed Robert's sister and mother of the hospital's decision, their objections stalled the tube-removal and instead made it an issue for the courts.
Smith explained that at one time food and water were considered ordinary care. That changed in 1986, when the American Medical Association decided to call food and water “medical treatment” instead. This opened the door to a slew of court cases by family members of comatose or “permanently vegetative” patients seeking the authority to speak on behalf of their unconscious relative to refuse “medical treatment” in the form of food and water.
“At this point, there are policies which say that families can decide they don't want feeding tubes,” Smith said. “As long as the families agree, no one cares. It's only when you have a disagreement in the family and the patient is conscious, like Robert Wendland, that people learn about these cases,” Smith said.
According to his wife, not long before his accident, Wendland had made certain comments to the effect that he would rather die than live in a permanently vegetative state. Rose's lawyers sought to argue their case on the basis of this statement. The judge found it to be unconvincing, however.
Without “clear and convincing evidence” that Wendland himself would refuse food and water if he were able to, the tubes had to stay.Thus the court ruled in favor of Wendland's sister and mother.
But the court also ruled that Rose could make all other decisions regarding Wendland's care, making her Wendland's conservator.
Rose appealed the decision and Wendland was assigned his own attorney in the matter, on the recommendation of Janie Hickock Siess, attorney for Robert's sister and mother.
Surprisingly, Wendland's court-appointed attorney sided with Rose, arguing that the wife should be allowed to have his tube removed. Since both attorneys agree that Rose has the right to refuse medical treatment to Robert, the only thing keeping Robert alive is the dissension on the question among his family members.
His attorney, James Braden argues in his appeal, made available to the Register, that California law clearly gives “conservators” like Rose sole authority in deciding if and when to refuse medical treatment to persons in their care, no ifs and or buts: “The conservator has the exclusive authority to give consent for such medical treatment to be performed on the conservatee as the conservator in good faith based on medical advice determines to be necessary … ” he quotes the probate code saying.
“This plain language, containing no exceptions, no extra elements and no extraordinary burdens of proof, means that once the trial judge twice validated Rose Wendland as Robert Wendland's conservator, the court was required to allow her to exercise Robert's fundamental right to refuse further medical treatment,” Wendland writes in his appeal.
In a conversation with the Register, Siess referred to Braden's appeal, saying, “No state in this country that's looked at this issue has said a conservator can pull a feeding tube from a conservatee unless the conservatee is either comatose, terminally ill or in a permanently vegetative state.”
She said, “Wendland is not in that category. He feels pain, he interacts with his environment, and he can operate his electric wheelchair. He's just a disabled guy. In those other cases, the reason a patient is allowed to starve or dehydrate is because they can't feel pain. Robert can feel pain. … If you can kill Robert, who's next?”
Diane Coleman is the director of “Not Dead Yet,” an advocacy group for the disabled. She too is following the case closely. Coleman was shocked when she learned that Wendland's lawyer was “defending” his right to die. She also expressed concern over what she called “the agenda of euthaniasia-rights advocates,” an agenda she believes is evident in the Wendland case.
“Rose is pushing the limits of the law here,” Coleman said.
“The issue here is that Robert, by his actions and his gestures is expressing a desire to live. He isn't seeking death. People are now deciding that they have the right to take the life of a family member because they aren't fully who they were before an accident. This is involuntary euthanasia.
“If the state of California permits Rose Wendland to refuse her husband feeding, they will expand the ability of surrogates to withdraw life sustaining treatment from people who do not request it. Many thousands of people would face the same threat of death without consent,” Coleman said.
- October 17-23, 1999