Wendland v. Wendland

Opinion

In this case we consider whether a conservator of the person may withhold artificial nutrition and hydration from a conscious

Eventually, the 20-member ethics committee unanimously approved Rose’s decision. In the course of their deliberations, however, the committee did not speak with Robert’s mother or sister. Florence learned, apparently through an anonymous telephone call, that Dr. Kass planned to remove Robert’s feeding tube. Florence and Rebekah applied for a temporary restraining order to bar him from so doing, and the court granted the motion ex parte.

Rose immediately thereafter petitioned for appointment as Robert’s conservator. In the petition, she asked the court to determine that Robert lacked the capacity to give informed consent for medical treatment and to confirm her authority “to withdraw and/or withhold medical treatment and/or life-sustaining treatment, including, but not limited to, withholding nutrition and hydration.” Florence and Rebekah (hereafter sometimes objectors) opposed the petition. After a hearing, the court appointed Rose as conservator but reserved judgment on her request for authority to remove Robert’s feeding tube. The court ordered the conservator to continue the current plan of physical therapy for 60 days and then to report back to the court. The court also visited Robert in the hospital.

After the 60-day period elapsed without significant improvement in Robert’s condition, the conservator renewed her request for authority to remove his feeding tube. The objectors asked the trial court to appoint independent counsel for the conservatee. The trial court declined, and the Court of Appeal summarily denied the objectors’ petition for writ of mandate. We granted review and transferred the case to the Court of Appeal, which then directed the trial court to appoint counsel. (Wendland v. Superior Court (1996) 49 Cal.App.4th 44 [ 56 Cal.Rptr.2d 595 ].) Appointed counsel, exercising his independent judgment (see generally Conservatorship of Drabick (1988) 200 Cal.App.3d 185 , 212-214 [ 245 Cal.Rptr. 840 ] (Drabick)), decided to support the conservator’s decision. (Because the conservator’s and appointed counsel’s positions in this court are essentially identical, we will henceforth refer solely to the conservator for brevity’s sake.)

The ensuing proceeding generated two decisions. In the first, the court set out the law to be applied at trial. The court found no “clear cut guidance” on

The trial generated the evidence set out above. The testifying physicians agreed that Robert would not likely experience further cognitive recovery. Dr. Kass, Robert’s treating physician, testified that, to the highest degree of medical certainty, Robert would never be able to make medical treatment decisions, walk, talk, feed himself, eat, drink, or control his bowel and bladder functions. Robert was able, however, according to Dr. Kass, to express “certain desires .... Like if he’s getting tired in therapy or if he wants to quit therapy, he’s usually very adamant about that. He’ll either strike out or he’ll refuse to perform the task.” Dr. Kobrin, Robert’s neurologist, testified that Robert recognized certain caregivers and would allow only specific'Caregivers to bathe and help him. Both Dr. Kass and Dr. Kobrin had prescribed medication for Robert’s behavioral problems. Dr. Sundance, who was retained by appointed counsel to evaluate Robert, described him as being in a “minimally conscious state in that he does have some cognitive function” and the ability to “respond to his environment,” but not to “interact” with it “in a more proactive way.”

On April 29, 1997, Dr. Kass asked Robert a series of questions using an augmented communications device, or “yes/no board.” (See ante, at p. 525,

“Do you have pain? Yes.

“Do your legs hurt? No.

“Does your buttocks hurt? No.

“Do you want us to leave you alone? Yes.

“Do you want more therapy? No.

“Do you want to get into the chair? Yes.

“Do you want to go back to bed? No.

“Do you want to die? No answer.

“Are you angry? Yes.

“At somebody? No.”

So far as Dr. Kass knew, no one had previously asked Robert the same questions. Dr. Kass acknowledged there was no way to verify whether Robert “really understood the questions or not,” but “[t]he reason I asked those questions,” Dr. Kass continued, “is because [Robert] was able to answer the previous questions mostly correctly. So I thought perhaps he could understand more questions.” Dr. Kass believed Robert probably understood some but not all of the questions. Robert’s speech pathologist, Lowana Brauer, testified generally that Robert used the augmented communications device primarily as therapy and not with enough consistency to justify leaving the device in his room for communication with other people. She did not, however, testify specifically about the interaction between Robert and Dr. Kass.

Robert’s wife, brother and daughter recounted preaccident statements Robert had made about his attitude towards life-sustaining health care. Robert’s wife recounted specific statements on two occasions. The first occasion was Rose’s decision whether to turn off a respirator sustaining the life of her father, who was near death from gangrene. Rose recalls Robert saying: “I would never want to live like that, and I wouldn’t want my children to see me like that and look at the hurt you’re going through as an adult seeing your father like that.” On cross-examination, Rose acknowledged Robert said on this occasion that Rose’s father “wouldn’t want to live like a vegetable” and “wouldn’t want to live in a comatose state.”

That a competent person has the right to refuse treatment is a statement both of common law and of state constitutional law. In its common law form, the principle is often traced to Union Pacific Railway Co. v. Botsford (1891) 141 U.S. 250 , 251 [ 11 S.Ct. 1000 , 1001, 35 L.Ed. 734 ], in which the United States Supreme Court wrote that “[n]o right is held more sacred, or is more carefully guarded, by .the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Applying this principle, the high court held that the plaintiff in a personal injury case was not required to submit to a surgical examination intended to reveal the extent of her injuries. (Ibid.) Courts in subsequent cases relied on the same principle to award damages for operations performed without the patient’s consent. The landmark case is Schloendorff v. Society of New York Hospital (1914) 211 N.Y. 125 [ 105 N.E. 92 , 93], in which Judge Cardozo wrote that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” We adopted this principle in Cobbs v. Grant (1972) 8 Cal.3d 229 , 242 [ 104 Cal.Rptr. 505 , 502 P.2d 1 ], adding that “the patient’s consent to treatment, to be effective, must be an informed consent.” Most recently, in Thor v. Superior Court (1993) 5 Cal.4th 725 [ 21 Cal.Rptr.2d 357 , 855 P.2d 375 ], we held that the common law right of a competent adult to refuse life-sustaining treatment extends even to a state prisoner; we thus absolved prison officials and medical personnel of any duty to provide artificial hydration and nutrition against the will of a quadriplegic prisoner who needed such treatment to survive.

The Courts of Appeal have found another source for the same right in the California Constitution’s privacy clause. (Cal. Const., art. I, § 1.) The court in Bartling v. Superior Court (1984) 163 Cal.App.3d 186 [ 209 Cal.Rptr. 220 ] held that a competent adult with serious, probably incurable illnesses was entitled to have life-support equipment disconnected over his physicians’ objection even though that would hasten his death. “The right of a competent adult patient to refuse medical treatment,” the court explained, “has its origins in the constitutional right of privacy. This right is specifically guaranteed by the California Constitution (art. I, § 1) . . . . The constitutional right of privacy guarantees to the individual the freedom to choose to

In Thor v. Superior Court, supra, 5 Cal.4th 725 , as mentioned, we based our conclusion that a prisoner had the right to refuse life-sustaining treatment solely on the common law without also considering whether the state Constitution provided similar protection. But Thor does not reject the state Constitution as a basis for the right. More importantly, we have since Thor determined that the privacy clause does protect the fundamental interest in personal autonomy. “Where the case involves an obvious invasion of an interest fundamental to personal autonomy, e.g., freedom from involuntary sterilization or the freedom to pursue consensual familial relationships, a ‘compelling interest’ must be present to overcome the vital privacy interest.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 , 34 [ 26 Cal.Rptr.2d 834 , 865 P.2d 633 ]; see also American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307 , 340 [ 66 Cal.Rptr.2d 210 , 940 P.2d 797 ] [reaffirming Hill and adding to its list of “ ‘obvious invasions] of . . . interests] fundamental to personal autonomy’ ” (italics omitted) a law interfering with the decision whether to bear a child].) In comparison with these examples, the competent adult’s decision to refuse life-sustaining medical treatment must also be seen as fundamental.

Federal law has little to say about the competent person’s right to refuse treatment, but what it does say is not to the contrary. The United States Supreme Court spoke provisionally to the point in Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261 [ 110 S.Ct. 2841 , 111 L.Ed.2d 224 ] (Cruzan). At issue was the constitutionality of a Missouri law permitting a conservator to withhold artificial nutrition and hydration from a conservatee in a persistent vegetative state only upon clear and convincing evidence that the conservatee, while competent, had expressed the desire to refuse such treatment. The court concluded the law was constitutional. While

In view of these authorities, the competent adult’s right to refuse medical treatment may be safely considered established, at least in California.

The same right survives incapacity, in a practical sense, if exercised while competent pursuant to a law giving that act lasting validity. For some time, California law has given competent adults the power to leave formal directions for health care in the event they later become incompetent; over time, the Legislature has afforded ever greater scope to that power. The former Natural Death Act (Health & Saf. Code, former § 7185 et seq., added by Stats. 1976, ch. 1439, § 1, p. 6478, and repealed by Stats. 1991, ch. 895, § 1, p. 3973), as first enacted in 1976, authorized competent adults to direct health care providers to withhold or withdraw life-sustaining procedures under very narrow circumstances only: specifically, in the event of an incurable condition that would cause death regardless of such procedures and where such procedures would serve only to postpone the moment of death. In findings accompanying the law, the Legislature expressly found “that adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care” (id., § 7186) and explained the law as giving lasting effect to that right: “In recognition of the dignity and privacy which, patients have a right to expect, the Legislature hereby declares that the laws of the State of California shall recognize the right of an adult person to make a written directive instructing his physician to withhold or withdraw life-sustaining procedures in the event of a terminal condition.” (Ibid.) In 1991, the Legislature amended the law to permit competent adults to refuse, in advance, life-sustaining procedures in the event of a “permanent unconscious condition,” defined as an “irreversible coma or persistent vegetative state.” (Health & Saf. Code, former §§ 7185.5, 7186, subd. (e), added by Stats. 1991, ch. 895, § 2, pp. 3974-3975, and repealed by Stats. 1999, ch. 658, § 7.) Intervening legislation also enabled a competent adult to execute a durable power of attorney authorizing an agent

Effective July 1, 2000, the Health Care Decisions Law (Stats. 1999, ch. 658) gives competent adults extremely broad power to direct all aspects of their health care in the event they become incompetent. The new law, which repeals the former Natural Death Act and amends the durable power of attorney law, draws heavily from the Uniform Health-Care Decisions Act adopted in 1993 by the National Conference of Commissioners on Uniform State Laws. (See 2000 Health Care Decisions Law and Revised Power of Attorney Law (Mar. 2000) 30 Cal. Law Revision Com. Rep. (2000) p. 49 [preprint copy].) Briefly, and as relevant here, the new law permits a competent person to execute an advance directive about “any aspect” of health care. (§4701.) Among other things, a person may direct that life-sustaining treatment be withheld or withdrawn under conditions specified by the person and not limited to terminal illness, permanent coma, or persistent vegetative state. A competent person may still use a power of attorney for health care to give an agent the power to make health care decisions (§ 4683), but a patient may also orally designate a surrogate to make such decisions by personally informing the patient’s supervising health care provider. (§ 4711.) Under the new law, agents and surrogates are required to make health care decisions “in accordance with the principal’s individual health care instructions, if any, and other wishes to the extent known to the agent.” (§ 4684; see also § 4711.)

All of the laws just mentioned merely give effect to the decision of a competent person, in the form either of instructions for health care or the designation of an agent or surrogate for health care decisions. Such laws may accurately be described, as the Legislature has described them, as a means to respect personal autonomy by giving effect to competent decisions: “In recognition of the dignity and privacy a person has a right to expect, the law recognizes that an adult has the fundamental right to control the decisions relating to his or her own health care, including the decision to have life-sustaining treatment withheld or withdrawn.” (§ 4650, subd. (a) [legislative findings].) This court made essentially the same point in Thor v. Superior Court, supra, 5 Cal.4th 725 , 740, where we described “the [former] Natural Death Act and other statutory provisions permitting an individual or designated surrogate to exercise conclusive control over the administration of life-sustaining treatment [as] evidencing] legislative recognition that

In contrast, decisions made by conservators typically derive their authority from a different basis—the parens patriae power of the state to protect incompetent persons. Unlike an agent or a surrogate for health care, who is voluntarily appointed by a competent person, a conservator is appointed by the court because the conservatee “has been adjudicated to lack the capacity to make health care decisions.” (§ 2355, subd. (a).) In 1988, the court in Drabick, supra, 200 Cal.App.3d 185 , confused these two distinct concepts— the voluntary act of a competent person and the state’s parens patriae power—and on that questionable basis took to a novel conclusion the idea that a person’s right to refuse treatment survives incompetence. Drabick figures prominently both in the legislative history of section 2355—the statute governing this case—and the parties’ arguments. It therefore deserves close attention.

At issue in Drabick, supra, 200 Cal.App.3d 185 , was a conservator’s proposal to end the life of a conservatee by removing a nasogastric feeding tube. The formerly competent conservatee had been unconscious for five years in a persistent vegetative state; physicians opined he would never regain consciousness. While the conservatee had expressed informally his desire not to be kept alive by artificial life support systems, he had not left formal directions for his health care. Former section 2355, subdivision (a) (added by Stats. 1979, ch. 726, § 3, pp. 2379-2380, and repealed by Stats. 1990, ch. 79, § 13, p. 463) gave the conservator “exclusive authority to give consent for such medical treatment ... as the conservator in good faith based on medical advice determines to be necessary.” The court construed this language as also giving the conservator, “by necessary implication, . . . power to withhold or withdraw consent to medical treatment under appropriate circumstances.” (Drabick, supra, at p. 200.) Treatment to sustain the life of a permanently unconscious person was not “ ‘necessary’ ” within the meaning of former section 2355, the court reasoned, “if it offers no reasonable possibility of returning the conservatee to cognitive life and if it is not otherwise in the conservatee’s best interests, as determined by the conservator in good faith.” (Drabick, supra, at p. 218.)

Counsel appointed to represent the conservatee in Drabick, supra, 200 Cal.App.3d 185 , argued that the state’s interest in preserving life justified the court in limiting the conservator’s powers. The court disagreed. Rather than presenting a conflict between the conservator’s decision to terminate life support and the state’s interest in preserving life, the Drabick court thought the case was more appropriately viewed as presenting a conflict

No published decision in this state has rejected the Drabick court’s conclusions. Seven months after Drabick, the court in Conservatorship of Morrison (1988) 206 Cal.App.3d 304 , 308-309 [ 253 Cal.Rptr. 530 ] viewed Drabick as having settled the question whether former section 2355 empowered a conservator to end the life of a persistently vegetative conservatee by withholding artificial nutrition and hydration. But neither, until the decision presently on review, has the holding in Drabick been extended to cases involving conservatees other than those in persistent vegetative states. This, almost certainly, is because the Drabick court strictly limited its decision to such persons. The “opinion’s reasoning,” the court wrote, “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 185 , 217, fn. 36.) Although the court did not explain how its reasoning was predicated on the conservatee’s permanently unconscious state, the decision’s self-imposed limitation avoids or mitigates a serious constitutional problem: A person whose permanent unconsciousness prevents him from perceiving that artificial hydration and nutrition are being withdrawn arguably has a more attenuated interest in avoiding that result than a person who may consciously perceive the effects of dehydration and starvation.

The ultimate focus of our analysis, as mentioned at the outset, must be section 2355, the statute under which the conservator claims the authority to end the conservatee’s life. The statute’s history indicates that the Law Revision Commission, which drafted the current version, was aware of and intended to incorporate some, but not all, of the Drabick (supra, 200 Cal.App.3d 185 ) court’s construction of the former statute.

As originally enacted in 1979, and at the time the lower courts ruled in this case, section 2355 provided: “If the conservatee has been adjudicated to lack the capacity to give informed consent for medical treatment, 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 and the conservator may require the conservatee to receive such medical treatment, whether or not the conservatee objects.” (Former § 2355, subd. (a), added by Stats. 1979, ch. 726, § 3, pp. 2379-2380, repealed and reenacted without change by Stats. 1990, ch. 79, § 14, p. 575 [enacting new Probate Code].)

This language arguably was broad enough to cover the entire range of medical decisions a conservator might be called upon to make. Historical evidence is lacking, however, that the Legislature in 1979 actually contemplated that the statute would be understood as authorizing a conservator to deliberately end the life of a conservatee by withholding artificially delivered food and water. Such authority, if it indeed existed, would have been merely implicit, as a consequence of the statute’s broad language. The claim that section 2355 conferred that authority was first considered and accepted in 1988 by the court in Drabick, supra, 200 Cal.App.3d 185 . (See ante, p. 535 et seq.)

The Drabick court also read former section 2355 as severely restricting the role of courts in supervising conservators’ treatment decisions. “[W]e do not believe,” the court wrote, “that it is the [trial] court’s role to substitute its judgment for the conservator’s. Instead, when the conservator or another interested person has requested the court’s approval the court should confine its involvement to ensuring that the conservator has made the type of decision for which the Probate Code expressly calls: a ‘good faith’ decision ‘based on medical advice’ whether treatment is ‘necessary.’ ” (Drabick, supra, 200 Cal.App.3d 185 , 200, quoting former § 2355.) The required decision, the court explained, is the conservator’s assessment of the conservatee’s best interests. While acknowledging that the conservator would be bound by the conservatee’s formal health care directions in a durable power

In 1990, the Legislature repealed and reenacted former section 2355 without change while reorganizing the Probate Code. But in 1999, section 2355 changed significantly with the Legislature’s adoption of the Health Care Decisions Law (§ 4600 et seq., added by Stats. 1999, ch. 658). That law took effect on July 1, 2000, about four months after the Court of Appeal filed the opinion on review. Many of the new law’s provisions, as already noted, are the same as, or drawn from, the Uniform Health-Care Decisions Act. (See 30 Cal. Law Revision Com. Rep., supra, p. 49.) Section 2355, as a statute addressing medical treatment decisions, was revised to conform to the new law.

The main purpose of the Health Care Decisions Law is to provide “procedures and standards” governing “health care decisions to be made for adults at a time when they are incapable of making decisions on their own and [to] provide[] mechanisms for directing their health care in anticipation of a time when they may become incapacitated.” (30 Cal. Law Revision Com. Rep., supra, p. 6.) The core provision of the new law, which comes directly from the Uniform Health-Care Decisions Act, sets out uniform standards for the making of health care decisions by third parties. The language embodying this core provision now appears in statutes governing decisions by conservators (§ 2355), agents (§ 4684), and surrogates (§ 4714). This language is set out below in italics, as it appears in the context of section 2355: “If the conservatee has been adjudicated to lack the capacity to make health care decisions, the conservator has the exclusive authority to make health care decisions for the conservatee that the conservator in good

The last sentence of section 2355, subdivision (a), set out above, incorporates definitional provisions of the Health Care Decisions Law. Of these, section 4615 defines “ ‘[hjealth care’ ” as “any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a patient’s physical or mental condition.” Section 4617 defines “ ‘[hjealth care decision’ ” as “a decision made by a patient or the patient’s agent, conservator, or surrogate, regarding the patient’s health care, including the following: fl[] (a) Selection and discharge of health care providers and institutions. [H] (b) Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication. [H] (c) Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.” (Italics added.)

These revisions to section 2355, like the remainder of the Health Care Decisions Law, were drafted by the Law Revision Commission. In its official comment to section 2355, the commission wrote that subdivision (a), as amended, “is consistent with . . . Drabick, [supra, 200] Cal.App.3d 185 . . . .” (30 Cal. Law Revision Com. Rep., supra, com. to § 2355, p. 263.) In the comment, the commission also set out important passages from the Drabick opinion, presumably as indicative of the drafters’ intent. Indeed, the new law is consistent with Drabick in recognizing the power of conservators to refuse consent to health care, even health care necessary to sustain life, and in treating the decision to withhold artificial nutrition and hydration as a health care decision.

In other respects, the current version of section 2355 departs from the decision in Drabick, supra, 200 Cal.App.3d 185 . The Drabick court viewed

1. The primary standard: a decision in accordance with the conservatee’s wishes ■

The conservator asserts she offered sufficient evidence at trial to satisfy the primary statutory standard, which contemplates a decision “in accordance with the conservatee’s . . . wishes . . . .” (§ 2355, subd. (a).) The trial court, however, determined the evidence on this point was insufficient. The conservator did “not [meet] her duty and burden,” the court expressly found, “to show by clear and convincing evidence that [the] conservatee . . . , who is not in a persistent vegetative state nor suffering from a terminal illness would, under the circumstances, want to die.” To be sure, the court made this finding under former section 2355 rather than the current version—and not because the former statute expressly called for such a finding but under the belief that case law required it. (See ante, at p. 526-527.) But the finding’s relevance under the new statute cannot easily be dismissed: The new statute expressly requires the conservator to follow the conservatee’s wishes, if known. (§ 2355, subd. (a).)

The conservator argues the Legislature understood and intended that the low preponderance of the evidence standard would apply. Certainly this was the Law Revision Commission’s understanding. On this subject, the commission wrote: “[Section 2355] does not specify any special evidentiary standard for the determination of the conservatee’s wishes or best interest. Consequently, the general rule applies: the standard is by preponderance of the evidence. Proof is not required by clear and convincing evidence.” (30 Cal. Law Revision Com. Rep., supra, p. 264.) We have said that “[explanatory comments by a law revision commission are persuasive evidence of the intent of the Legislature in subsequently enacting its recommendations into law.” (Brian W. v. Superior Court (1978) 20 Cal.3d 618 , 623 [ 143 Cal.Rptr. 717 , 574 P.2d 788 ].) Nevertheless, one may legitimately question whether the Legislature can fairly be assumed to have read and endorsed every statement in the commission’s 280-page report on the Health Care Decisions Law. (Cf. Van Arsdale v. Hollinger (1968) 68 Cal.2d 245 , 250 [ 66 Cal.Rptr. 20 , 437 P.2d 508 ] [describing the inference of legislative approval as strongest when the commission’s comment is brief].)

The objectors, in opposition, argue that section 2355 would be unconstitutional if construed to permit a conservator to end the life of a conscious conservatee based on a finding by the low preponderance of the

At the time the Legislature was considering the present version of section 2355, no court had interpreted any prior version of the statute as permitting a conservator deliberately to end the life of a conscious conservatee. Even today, only the decision on review so holds. The court in Drabick, supra, 200 Cal.App.3d 185 , as we have seen, found sufficient authority in the statute to confirm a conservator’s decision that artificial hydration and nutrition was not in the best interest of a permanently unconscious, persistently vegetative conservatee. The Drabick court, however, expressly limited its decision to cases involving conservatees in the same medical condition and stated that its reasoning was, in some unexplained way, predicated on such facts. (Id. at p. 217, fn. 36.) While the conservator embraces Drabick in other respects, the authoring court, she writes, “was flat-out wrong to limit the applicability of [section] 2355, of its statutory analysis, and of its constitutional insights to permanently unconscious conservatees as these limitations ignore the plain language of the statute as well as logic.” To the contrary, by limiting its decision in this way the Drabick court thereby avoided the constitutional problem we confront here, namely, the propriety of a decision to withhold artificial nutrition and hydration from a conscious conservatee who, while incompetent, may nevertheless subjectively perceive the effects of dehydration and starvation. (See ante, at p. 537.)

In amending section 2355 in 1999, neither the Legislature, nor the Law Revision Commission in its official report to the Legislature, alluded to the possibility that the statute might be invoked to justify withholding artificial nutrition and hydration from a conscious patient. The conservator sees evidence of specific legislative authority for such a decision in the findings that accompanied the Health Care Decisions Law, but we do not. These findings, which first entered California law as part of the former Natural Death Act (Health & Saf. Code, former § 7185.5; see ante, at p. 533), were

Notwithstanding the foregoing, one must acknowledge that the primary standard for decisionmaking set out in section 2355 does articulate what will in some cases form a constitutional basis for a conservator’s decision to end the life of a conscious patient: deference to the patient’s own wishes. This standard also appears in the new provisions governing decisions by agents and surrogates designated by competent adults. (§§ 4684, 4714.) As applied in that context, the requirement that decisions be made “in accordance with the principal’s individual health care instructions . . . and other wishes” (§ 4684) merely respects the principal-agent relationship and gives effect to the properly expressed wishes of a competent adult. Because a competent adult may refuse life-sustaining treatment (see ante, at p. 530 et seq.), it follows that an agent properly and voluntarily designated by the principal may refuse treatment on the principal’s behalf unless, of course, such authority is revoked. (See, e.g., §§ 4682, 4689, 4695 [providing various ways in which the authority of an agent for health care decisions may be revoked or the agent’s instructions countermanded].)

The only apparent purpose of requiring conservators to make decisions in accordance with the conservatee’s wishes, when those wishes are known, is to enforce the fundamental principle of personal autonomy. The same requirement, as applied to agents and surrogates freely designated by competent persons, enforces the principles of agency. A reasonable person presumably will designate for such purposes only a person in whom the former reposes the highest degree of confidence. A conservator, in contrast, is not an agent of the conservatee, and unlike a freely designated agent cannot be presumed to have special knowledge of the conservatee’s health care wishes. A person with “sufficient capacity ... to form an intelligent preference” may nominate his or her own conservator (§ 1810), but the nomination is not binding because the appointment remains “solely in the discretion of the court” (§ 1812, subd. (a)). Furthermore, while statutory law gives preference to spouses and other persons related to the conservatee (id., subd. (b)), who might know something of the conservatee’s health care preferences, the law also permits the court in its sole discretion to appoint unrelated persons and even public conservators (ibid..). While it may be constitutionally permissible to assume that an agent freely designated by a formerly competent person to make all health care decisions, including life-ending ones, will resolve such questions “in accordance with the principal’s . . . wishes” (§ 4684), one

We base our decision on California law. It is nevertheless worth mentioning that no decision of which we are aware has approved a conservator’s or guardian’s proposal to withdraw artificial nutrition and hydration from a conscious conservatee or ward.

The highest courts of three other states have spoken to the matter. Of these decisions, In re Martin, supra, 538 N.W.2d 399 , is most like the case before us. Conservatee Michael Martin, like the conservatee here, suffered a head injury in an automobile accident that left him minimally conscious, unable to walk or talk, and dependent on artificial nutrition and hydration. At his highest level of functioning, Michael could move his leg or arm in response to a therapist’s request and move his head in response to questions seeking a yes or no answer. On one occasion he indicated “no” in response to the question whether there were ever times when he felt he did not want to go on living; the witnesses, however, disagreed about the consistency and significance of Michael’s responses to questions. (Id. at pp. 402-403.) The Supreme Court of Michigan, applying that state’s common law, did not permit the conservator, Michael’s wife, to withdraw artificial nutrition and hydration because clear and convincing evidence did not show he had expressed a

The Supreme Courts of Wisconsin and New Jersey have also refused permission, under their own states’ common law, to withhold artificial nutrition and hydration from incompetent but conscious patients. The Wisconsin court required a “clear statement” of the conservatee’s desires, proved by a preponderance of the evidence. (Matter of Edna M.F. (1997) 210 Wis.2d 557 [ 563 N.W.2d 485 , 490].) The court described the necessary “clear statement” as an exceptional requirement, not applicable to “other, less permanent, decisions,” and justified by “the interest of the state in preserving human life and the irreversible nature of the decision to withdraw nutrition from a person.” (Ibid., fn. omitted.) Ruling in the case of a woman with Alzheimer’s dementia, the court did not find a sufficiently clear statement of the desire to refuse treatment in her predementia comment that she “ ‘would rather die of cancer than lose [her] mind’ she had not, the court noted, said anything specifically about withdrawing life-sustaining medical treatment. (Id. at p. 487.) The court also specifically refused to extend to conscious patients its earlier decision giving conservators, as a matter of law, the power to withhold life-sustaining treatment from persistently vegetative patients. (Id. at pp. 488-490; see Matter of Guardianship of L.W. (1992) 167 Wis.2d 53 [ 482 N.W.2d 60 ].)

The Supreme Court of New Jersey, articulating that state’s common law, adopted a fairly complex three-part test. (Matter of Conroy (1985) 98 N.J.

About these three decisions one point deserves emphasis: In each case, the court required a clear statement by the patient of the intent to refuse life-sustaining treatment when a conservator or guardian proposed to withdraw treatment from a conscious conservatee or ward in order to effectuate the latter’s own right to refuse treatment. (In re Martin, supra, 538 N.W.2d 399 , 406-411; Matter of Edna M.F., supra, 563 N.W.2d 485 , 488-491; Matter of Conroy, supra, 486 A.2d 1209 , 1229.) As we have explained, the only apparent purpose of California’s statutory language requiring a decision “in accordance with the conservatee’s . . . wishes” (§ 2355, subd. (a)) is to enforce the fundamental principle of personal autonomy, in the same way that the identical language in other provisions (§§4684, 4714) governing agents and surrogates freely designated by competent persons enforces the principles of agency. While we place no great emphasis on the out-of-state cases, they nevertheless support the fundamental principles that underlie our conclusions, including the imposition of a high standard of proof.

One amicus curiae argues that “[ijmposing so high an evidentiary burden [i.e., clear and convincing evidence] would . . . frustrate many genuine treatment desires—particularly the choices of young people, who are less likely than older people to envision the need for advanced directives, or poor people, who are less likely than affluent people to have the resources to

On the same general subject, a group of amici curiae contends as follows: “If this court decides that physicians may not follow a surrogate’s instruction to withdraw life-sustaining treatment unless the evidence of the patient’s wishes satisfies a ‘clear and convincing’ standard of proof, many physicians will refuse to do so without judicial approval.” But this will not be a valid concern, as we have already explained, in the case of patients who have personally appointed agents or surrogates for health care decisions or left formal instructions for health care, nor in the vast majority of health care decisions, i.e., those less weighty than the decision to withdraw life-sustaining treatment from a conscious patient. The constitutional considerations on which we rely justify applying the clear and convincing evidence standard only when a conservator seeks to withdraw life-sustaining treatment from a conscious, incompetent patient who has not left legally cognizable instructions for health care or appointed an agent or surrogate for health care decisions.

In the case before us, the trial court found that the conservator failed to show “by clear and convincing evidence that conservatee Robert Wendland, who is not in a persistent vegetative state nor suffering from a terminal illness would, under the circumstances, want to die.” The conservator does not appear to challenge the trial court’s finding on this point; her challenge, rather, is to the trial court’s understanding of the law. For these reasons, we need not review the sufficiency of the evidence to support the finding. Nevertheless, given the exceptional circumstances of this case, we note that the finding appears to be correct.

On this point the trial court wrote: “[T]he testimony adduced focuses upon two pre-accident conversations during which the conservatee allegedly expressed a desire not to live like a ‘vegetable.’ These two conversations do not establish by clear and convincing evidence that the conservatee would desire to have his life-sustaining medical treatment terminated under the circumstances in which he now finds himself. One of these conversations allegedly occurred when the conservatee was apparently recovering from' a night’s bout of drinking. The other alleged conversation occurred following the loss of conservatee’s father-in-law, with whom he was very close. The court finds that neither of these conversations reflect an exact ‘on all-fours’ description of conservatee’s present medical condition. More explicit direction than just T don’t want to live like a vegetable’ is required in order to justify a surrogate decision-maker terminating the life of . . . someone who is not in a PVS [persistent vegetative state].” We agree with the trial court’s assessment of the evidence. That assessment is essentially in accord with the only case directly on point, in which the Michigan Supreme Court found no clear and convincing evidence of a desire to refuse treatment under very similar facts. (See In re Martin, supra, 538 N.W.2d 399 , discussed ante, at p. 548 et seq.) We add to the trial court’s assessment only that Rose acknowledged Robert did not describe the precise condition in which he later found himself (see ante, at p. 528) and that, while experts dispute the consistency and accuracy of Robert’s responses to questions, it is difficult to ignore the fact that he declined to answer the question “Do you want to die?” while giving facially plausible “yes” or “no” answers to a variety of other questions about his wishes. (See ante, at p. 528 et seq.) On this record, we see no reason to hold that the evidence does not support the trial court’s finding.

2. The best interest standard

Having rejected the conservator’s argument that withdrawing artificial hydration and nutrition would have been “in accordance with the conservatee’s . . . wishes” (§ 2355, subd. (a)), we must next consider her contention that the same action would have been proper under the fallback best interest

Here, as before, the conservator argues that the trial court applied too high a standard of proof. This follows, she contends, from section 2355, which gives her as conservator “the exclusive authority” to give consent for such medical treatment as she “in good faith based on medical advice determines to be necessary” (§ 2355, subd. (a), italics added), and from the decision in Drabick, supra, 200 Cal.App.3d 185 , 200, which emphasized that a court should not substitute its judgment for the conservator’s. The legislative findings to the Health Care Decisions Law, the conservator notes, declare that “[i]n the absence of controversy, a court is normally not the proper forum in which to make health care decisions, including decisions regarding life-sustaining treatment” (§ 4650, subd. (c)); similarly, the Law Revision Commission has explained that “[cjourt control or intervention in this process is neither required by statute, nor desired by the courts.” (30 Cal. Law Revision Com. Rep., supra, com. to § 2355, p. 264.) Based on these statements, the conservator argues the trial court has no power other than to verify that she has made the decision for which the Probate Code expressly calls: a “good faith” decision “based on medical advice” and “consider[ing] the conservatee’s personal values” whether treatment is “necessary” in the conservatee’s “best interest.” (§ 2355, subd. (a).) The trial court, as noted, rejected the conservator’s assessment of the conservatee’s best interest but nevertheless found by clear and convincing evidence that she had acted “in good faith, based on medical evidence and after consideration of the conservatee’s best interests, including his likely wishes, based on his previous statements.” This finding, the conservator concludes, should end the litigation as a matter of law in her favor.

The conservator’s understanding of section 2355 is not correct. To be sure, the statute provides that “the conservator shall make the decision in accordance with the conservator’s determination of the conservatee’s best interest.” (§ 2355, subd. (a), italics added.) But the conservator herself concedes the court must be able to review her decision for abuse of discretion. This much, at least, follows from the conservator’s status as an officer of the court subject to judicial supervision. While the assessment of a conservatee’s best interest belongs in the first instance to the conservator,

In the exceptional case where a conservator proposes to end the life of a conscious but incompetent conservatee, we believe the same factor that principally justifies applying the clear and convincing evidence standard to a determination of the conservatee’s wishes also justifies applying that standard to a determination of the conservatee’s best interest: The decision threatens the conservatee’s fundamental rights to privacy and life. While section 2355 is written with sufficient breadth to cover all health care decisions, the Legislature cannot have intended to authorize every conceivable application without meaningful judicial review. Taken to its literal extremes, the statute would permit a conservator to withdraw health care necessary to life from any conservatee who had been adjudicated incompetent to make health care decisions, regardless of the degree of mental and physical impairment, and on no greater showing than that the conservator in good faith considered treatment not to be in the conservatee’s best interest. The result would be to permit a conservator freely to end a conservatee’s life based on the conservator’s subjective assessment, albeit “in good faith [and] based on medical advice” (§ 2355, subd. (a)), that the conservatee enjoys an unacceptable quality of life. We find no reason to believe the Legislature intended section 2355 to confer power so unlimited and no authority for such a result in any judicial decision. Under these circumstances, we may properly construe the statute to require proof by clear and convincing evidence to avoid grave injury to the fundamental rights of conscious but incompetent conservatees. (See ante, at p. 546 et seq.)

We need not in this case attempt to define the extreme factual predicates that, if proved by clear and convincing evidence, might support a conservator’s decision that withdrawing life support would be in the best interest of a conscious conservatee. Here, the conservator offered no basis for such a finding other than her own subjective judgment that the conservatee did not enjoy a satisfactory quality of life and legally insufficient evidence to the effect that he would have wished to die. On this record, the trial court’s decision was correct.

For the reasons set out above, we conclude the superior court correctly required the conservator to prove, by clear and convincing evidence, either that the conservatee wished to refuse life-sustaining treatment or that to withhold such treatment would have been in his best interest; lacking such evidence, the superior court correctly denied the conservator’s request for

The decision of the Court of Appeal is reversed.

George, C. J., Kennard, J., Baxter, J., Chin, J., and Brown, J., concurred.

The petition of both appellants for a rehearing was denied September 26, 2001.