The Wendland Story

Unrealized by most, the ELCA is involved through one of its members in one of the most significant world-wide ethical decisions being made these days. Attorney Janie Siess of Lodi, CA, is a former organist at St Paul Lutheran and currently a member of Emmanuel Lutheran in Lodi. She represented the plaintiff in a suit brought by his mother and sister in behalf of Robert Wendland, in a case that has gone all the way to the California Supreme Court. Despite Wendland's death earlier this summer, making the trial moot, the Court has considered it so important in American jurisprudence that it will continue the trial to bring it to a decision.

Attorney Siess sees her role as a "matter of faith," said her former pastor, Larry Gedde, "a courageous battle against great odds; she believes she is being tested and beset by significant forces of evil because of her conviction."

Thomas J Marzen, General Counsel, National Legal Center for the Medically Dependent & Disabled, recounts the story of Robert Wendland, in National Right to Life News, (28:6). Excerpts from his article follow.

The lives of virtually all the mentally incapacitated adults in California who have not made their wishes clear, literally hang in the balance, awaiting the decision of the California Supreme Court in a case that will determine whether Robert Wendland would have been allowed to continue to live or whether he would have had to die by dehydration, in a case which has been inaccurately described as involving a "right to die."

It would be difficult to exaggerate how much is at stake in Wendland v. Wendland. It represents a major step down the slippery slope in which the logic of decisions reached for an entirely different category of disabled people is used to justify the removal of food and fluids from a man who has a severe disability but is clearly conscious. To appreciate its magnitude we have to go back to a seminal 1976 case and trace the arc of subsequent case law.

In Quinlan, the New Jersey Supreme Court in 1976 held that the parent-guardian of Karen Ann Quinlan, a permanently unconscious young woman, could order withdrawal of the respirator. However, When it was withdrawn, Karen unexpectedly continued to breathe on her own. Withdrawal of nutrition and hydration was never an issue and Karen lived for another decade.

The next phase of "right to die" litigation was the issue whether or when it was permissible to stop the use of tube feeding and hydration to sustain the lives of others like Karen Ann. The cases turned on the use of "artificial" methods to feed and give hydration to highly vulnerable patients said to be in a "persistent vegetative state ("PVS"), a diagnosis that remains controversial even today. The patient is said to be permanently unconscious, but nevertheless has sleep-wake cycles that sometimes mimic consciousness. Patients breathe on their own, but they cannot efficiently swallow. So they require "artificially" provided food and fluids. Typically this is nothing more complicated than four or five cans of Ensure a day, poured or pumped through a plastic tube into their stomachs or small intestines.

Who Makes the Call?

Who makes decisions for these people and what limits, if any, are there to the conservator's actions?

In case after case and in state after state over the past three decades, courts have held (with only a few exceptions) that guardians of patients unable to make their own medical treatment decisions can legally order withholding or withdrawing of tube feeding/hydration. The result is death by dehydration and malnutrition.

The courts empowered guardians to order withholding or withdrawing of tube feeding/ hydration in the "best interests" of patients only if the patients were deemed either to have terminal conditions or to be permanently unconscious, as PVS patients are said to be.

What if neither condition prevailed? Courts have held that for those patients tube feeding/ hydration can be withheld or withdrawn only if the patients had left behind "clear and convincing" evidence that this is specifically what the patients would have wanted.

Thus, the Michigan Supreme Court held in Michael Martin that a wife-guardian could not order withdrawal of tube feeding/ hydration from him. Though unable to make treatment decisions and unable to swallow, he was not unconscious. In fact he used a wheelchair effectively and enjoyed attending Tigers baseball games. Moreover, Mr. Martin had left behind no clear, convincing, or specific evidence that he would not want to be fed or hydrated under his present circumstances.

Likewise, the Wisconsin Supreme Court held in Edna Floss that the guardian of Edna Floss, a person with Alzheimer's disease, could not withhold tube feeding/hydration from Ms. Floss unless she was deemed to be terminally ill or permanently unconscious – or unless Ms. Floss had left behind clear, convincing, and specific evidence that this what she had wanted. Ms. Floss met none of those criteria.

The California Story

Enter the case of Robert Wendland. In 1993, at the age of 42, he incurred a severe head injury as the result of an auto accident. He was in a coma until January 1995 and recovered through several levels of consciousness.

According to documents filed with the California court, he had since acquired abilities to operate a motorized wheelchair, to move himself in a manual wheelchair, to balance momentarily in a balance frame, to indicate "yes" or "no" on a communication board, to draw the letter "R," to paint, and to play wheelchair bowling. He was clearly not unconscious, but he remained unable to make his own medical treatment decisions and required tube feeding/hydration to continue to survive.

In mid 1995 his wife and conservator (guardian), Rose Wendland, asked a California trial court to authorize her to order withdrawal of Robert's tube feeding/ hydration. His mother, Florence Wendland, and his sister, objected.

The lower court denied the wife-conservator the power to order withdrawal of the tube feeding/ hydration because she had not provided "clear and convincing" evidence that this would be Robert's decision. The California Court of Appeal reversed the ruling.

The appeals court held that, even without clear and convincing evidence of patient intent, a conservator had the authority under California's guardianship statute to order withholding or withdrawing of medical treatment, including tube feeding/hydration, unless it were shown that the conservator were acting in "bad faith" - that is, with an evil or invidious motive.

The Court of Appeal decision essentially gave a green light to California conservators to order foregoing any and ail forms of life-sustaining treatment and care from their mentally incapacitated wards. Conservators of older persons with various forms of dementia, people with mental retardation or other mental disabilities or illnesses-virtually anyone unable to make their own treatment decisions-would thus be authorized to decline to feed/ hydrate wards unable to swallow normally. They would be permitted to refuse other equally necessary and equally easy to provide forms of life-sustaining care for other wards with different disabilities.

Possible Rulings

What about people who've never been able to make treatment decisions or who failed to leave behind clear and convincing evidence that they wanted to be fed and hydrated should they become unable to swallow normally? If the appeals court decision is upheld by the California Supreme Court, they would be at the mercy of whichever family member (or stranger) ended up being appointed their guardian.

Thus a California Supreme Court decision that upheld the Court of Appeal would expose virtually all those in California who need a guardian because of mental disability-tens of thousands of people-to the most obvious sorts of euthanasia-by-omission. Such a decision of the highest court of the state with the largest population in the nation might also influence the courts of other states to reach similar conclusions, leading to the deaths of countless thousands of mentally incapacitated people.

The authority of the guardian to order withholding orwithdrawing of minimally burdensome treatment or care such as tube feeding/hydration, would be expanded beyond "terminal condition" and "permanent un-conscousness" to embrace virtually all persons with mental disabilities. The law could effectively protect only those who once had the ability and foresight to publicly object to this form of euthanasia-those whose guardians choose life on their behalf - and those whose guardians are plainly acting with evil motives.

An appeal to the U.S. Supreme Court should be expected whatever the outcome in the California Supreme Court.

Whether it would accept the case is unclear, although there appears to be a reasonable possibility of review especially if the California Supreme Court decides in a mannerthat places it in conflict with the Supreme Courts of Michigan and Wisconsin. And, in Wendland v. Wendland, the U.S. Supreme Court might well decide whether or not euthanasia-by-omission will become the law of the land.

[EDITOR'S NOTE: On 8/9/01 theCalif. Supreme Court ruled unanimously in favor of Wendland's mother, Mrs. Florence Wendland. It said that a conservator (Wendland's wife who petitioned her husband's death by malnutrition and dehydration) must show "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 interests." Lacking any such formal order of his wishes, the court ruled the life-sustaining food and water could not be denied. The Court continued, "The decision to treat is reversible; the decision to withdraw treatment is not." ELCA member, Attorney Janie Siess, responded that she was "in complete joy" over the ruling.]