In Re Grant: Where Does Washington Stand on Artificial Nutrition and Hydration?

• Publication year: 1989

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 13, No. 1FALL 1989

NOTE

In re Grant: Where Does Washington Stand on Artificial Nutrition and Hydration?

The Washington Supreme Court in In re Grant(fn1) sought to determine whether life sustaining treatment(fn2) could be legally withheld from a terminally ill, non-comatose, incompetent individual. In its December 1987 slip opinion, a majority of the court expanded on its previous decisions empowering third parties, including guardians, families, and physicians, to withhold and withdraw life sustaining treatment from incompetent individuals.(fn3) This was accomplished by characterizing artificial nutrition and hydration(fn4) as removable, life sustaining medical treatment. The court also gave third parties the power to remove artificial nutrition and hydration before the incompetent individual in question slips into a coma or persistent vegetative state.(fn5) After numerous, bizarre procedural twists, however, any semblance of a majority opinion disappeared, and the resulting decision serves only to further complicate an already complex and controversial issue.(fn6)

This Note will first show that through the Grant decision, the Washington Supreme Court clearly demonstrated the judiciary's institutional incompetence in resolving this complex, social and ethical issue. Though the judiciary legitimately and necessarily determines the rights of incompetent individuals, it is poorly designed to legislate specific medical procedures and ethics. Second, an examination of the history of life sustaining treatment in Washington indicates that the majority's original opinion was yet another attempt to legitimize illogical and unconstitutional reasoning granting third parties the power to exercise the fundamental rights of incompetent individuals. Finally, and most importantly, this Note will establish that the majority's original opinion wrongly characterized artificial nutrition and hydration as withholdable or withdrawable life sustaining treatment.

I. In re Grant

A. The Facts of the Case

Barbara Grant is afflicted with Batten's disease, a genetic, late-juvenile, degenerative disease which affects the central nervous system.(fn7) Barbara was a normal child of above average intelligence until, at the age of five, she began to experience problems with her vision.(fn8) These problems were followed by epileptic seizures, uncontrollable staggering, and speech difficulties. In addition, Barbara has suffered severe mental retardation.(fn9) In 1978, at the age of fourteen, a court declared Barbara incompetent and appointed her mother guardian. Unable to care for her at home, the Grant family committed Barbara to the Rainier School, a state institution in Buckley, Washington.(fn10)

In September 1985, Barbara's pulse rate dropped and her breathing became irregular. Cardiopulmonary resuscitation and oxygen were administered, and she was transported to Harborview Medical Center in Seattle. The extent of treatment she received at Harborview is unclear.(fn11) Barbara returned to the school that same day. When the Washington Supreme Court heard oral arguments in her case in November 1986, Barbara could no longer walk or talk, she had difficulty swallowing, and she was completely blind. Brain control over her heart and lungs had also deteriorated.(fn12)

The Washington Supreme Court quoted physicians from both the Rainier School and Harborview describing Barbara as "nearly comatose" and "in an almost vegetative state."(fn13) The court termed her death in the near future "inevitable."(fn14)

These findings, however, conflicted substantially with those of the Pierce County Superior Court.(fn15) The trial judge found Barbara to have "lived longer than what has been medically anticipated for her" and that "[n]o one can say how long Barbara Grant will live or when she will die."(fn16) Further, "Ms. Grant is not in pain, appears to be at peace, and is able to respond to outside stimuli, such as voices, sound and the presence of other people, at times."(fn17)

Based on subsequent developments, the trial judge's findings seem the most accurate. Barbara remains alive today, free from any extraordinary medical treatment.(fn18) Further, because of the indecipherable conclusion to which Barbara's case came,(fn19) Judith Grant has once again petitioned the Pierce County Superior court for an order to withhold treatment from her daughter.(fn20)

B. The Court's Slip Opinion

Soon after Barbara's trip to Harborview in September 1985, Judith Grant sought an Ex Parte Order authorizing her to withhold, in the event it became necessary, extraordinary(fn21) life sustaining treatment from her daughter. The issue Judith Grant first posed to the courts four years ago remains unresolved today.

On October 2, 1985, a wary Pierce County Commissioner appointed both a guardian ad litem and an "attorney for Barbara Grant," telling the attorney to resist Judith Grant's petition.(fn22) Barbara's immediate family and her guardian ad litem agreed with her mother's request; only the attorney assigned for Barbara opposed her motion.(fn23)

The trial began on October 24, 1985, and three months later the judge denied Judith Grant's motion.(fn24) Judith Grant appealed directly to the Washington Supreme Court. On October 7, 1986, the court decided to hear the case, and because of the alleged "urgency of Barbara Grant's situation,"(fn25) determined that it would hear the case before the end of the year.(fn26) The court heard oral arguments on November 19, 1986, and issued an Order with Opinion to Follow that same day. The Order provided:The guardian, Judith Grant, natural mother of Barbara Grant, is authorized to approve and direct the withholding of life sustaining procedures utilizing mechanical or other artificial means including cardiopulmonary resuscitation, defibrilation, the use of a respirator, intubation, the insertion of a naso-gastric tube, and intravenous nutrition and hydration.(fn27)

The opinion that followed on December 10, 1987, over a year after the November 1986 order, has been described as "a piece of legislation."(fn28) Justice Callow's majority opinion focused on four major issues. First, Justice Callow determined that life sustaining treatment may be withdrawn from a non-comatose, incompetent individual provided the individual "is in an advanced stage of a terminal illness," and "is suffering severe and permanent mental and physical deterioration."(fn29) This was the first time the Washington Court allowed treatment to be withdrawn from an incompetent individual who was not in a coma or a persistent vegetative state.(fn30)

Second, the majority opinion stated that an order allowing the withholding of all life sustaining treatment from a terminally ill, incompetent individual may be issued before any such treatment is needed.(fn31) This had been the major issue at trial(fn32) and the judge had maintained that such an order was "analagous to prior restraint."(fn33)

Third, Justice Callow, in the first such decision in Washington, characterized artificial nutrition and hydration as life sustaining treatment which may be legally withheld from non-comatose, terminally ill, incompetent individuals.(fn34)

Finally, the opinion set out criteria(fn35) by which the decision to withhold will be made by the incompetent individual's guardian and/or immediate family using a substituted judgment standard(fn36) or a best interests test.(fn37) Justices Pearson, Utter, Dolliver, and Durham joined in Justice Callow's opinion.

In their concurring opinion, Justices Andersen and Brachtenbach agreed with the majority that Barbara's family could legally decide to remove her life support systems, but vehemently dissented from the majority's characterization of artificial nutrition and hydration as withholdable, life sustaining treatment.(fn38) Justice Andersen called such a characterization "unadorned euthanasia"(fn39) and scolded the majority for making a decision that should have been made, if at all, by the citizens through their legislators.(fn40)

In contrast, Justices Goodloe and Dore dissented completely from Justice Callow's opinion, stating that Washington law(fn41) allows only competent adults, not their guardians, to determine whether and when to withhold life sustaining treatment.(fn42) Justice Goodloe also accused the majority of preempting ongoing legislative debate on the issue of artificial nutrition and hydration.(fn43) Like Justice Andersen, Justice Goodloe observed that the legislature, not the court, is the appropriate forum for such critical social value judgments.(fn44)

Even after the court issued its order and opinion, it was far from finished with the case of Barbara Grant. On December 22, 1987, the court received a letter from Assistant Washington Attorney General Steve Milam,(fn45) which brought to the court's attention new legislation changing the Washington Informed Consent Law.(fn46) According to Milam's letter, the court's requirement that all family members agree with the decision to withdraw treatment was in error. The new legislation prioritized classes of persons, from guardians and those with durable power of attorney, to family members, who could provide informed consent for incompetent individuals.(fn47)

The letter also asked the court "to consider errata changes to the opinion which I [Milam] believe would...