551-12

In Re AC

The case known as In Re AC is attached. I have edited the case. You will find *** in places I have deleted text that appeared in the original text.

Quite honestly it is hard to think of a sadder more tragic fact pattern. Even on my most creative days I don’t think I could come up with a fact pattern more disturbing and less suited for legal resolution. I assure you that In Re AC is real.

By now you have noticed that most cases take the format of John Jones v. (or vs.) Tom Thompson, with the first party being the plaintiff and the second party being the defendant. The rules of pleading vary from state to state just as the style preferences of one professor may be different from those of another professor. When a case is given a name like “In re ________” it usually suggests that the court has been asked to establish the rights of the parties even though there is not in the strictest sense a plaintiff and a defendant. As an example probate matters will usually follow this naming protocol. If I were to die without a will the court in the matter of “in re Craig Heckman” would be asked to determine the rights of all parties. The Court allowed the parties to refer to the case by the patient’s initials rather than using her full name to protect her privacy. If this had not dealt with such private matters that court would have given the case a name like “in re Alison Conners”.

In this case of In Re AC, the Court was asked to determine what should be done when a mother’s life and the life of an unborn child are hanging by the thinnest of threads. The hospital went to court seeking from the court a determination of whose wishes should be followed and how should it be determined what those wishes were. This kind of legal action is referred to as an action for a declaratory judgment. The hospital wisely recognized that no matter what they did someone would be critical of the decision they made. By asking the court to order them to follow one path or another they gave themselves protection from those that didn’t like what they did.

The decision I have asked you to read is the decision of the Court of Appeals. The court of appeals vacated the decision of the trial court. This means that they found the decision of the trial court wrong and in a figurative way ordered that the trial court’s decision be erased and replaced with the decision that they issued. You will notice that there is a dissenting opinion by Judge Belson.

Within the case you may have noticed the Latin phrase Parens patriae. Some lawyers and judges feel the need to show off their Latin so that we mere speakers of English will know how smart they are. The phrase Parens patriae encompasses two different ideas that are relevant to this case. The first is that the state, usually through, the courts, has the power to speak on behalf of those that can’t speak for themselves –think children or those that are mentally incompetent. Intertwined with this thought is the notion that the state has an obligation which matches this power. The obligation is to do what is best for the child. In this case the court was trying to make sure that the unborn child was given a voice in the matter and wanted to make sure that the voice given was seeking the best interests of the child.

The court also took the step of appointing a guardian ad litem, (sorry, more Latin), for the unborn child. In some cases the courts will appoint a lawyer to represent someone who because of age or mental condition is unable to speak for themselves. It is a challenging role for the lawyer who frequently has to piece together what they think is best for the client that they can’t talk to.

The court also uses two other terms that require definition, the first is mootness. A case is considered moot if there is no longer a controversy. Generally, courts don’t want to waste their time on cases where the controversy has evaporated. They occasionally make exceptions as they did in this case. The case was not moot when the trial court heard the case, but was moot when the court of appeals dealt with it. The final legal term is also Latin, Amicus Curiae. There are times in important cases where the court allows non-parties to weigh in by filing briefs. These briefs are permitted by the court if they think the view of the non-parties might help the court understand the issues better or might help the court shape its ultimate decision. The Amicus curiae briefs, some times known as amicus briefs, are often given the more English friendly title of “friend of the court briefs.” In this case the court accepted amicus briefs from organizations that had an interest in the outcome of the case.

The case is a difficult read, but give it your best.

As we discuss this case be prepared to consider:

what would you do if you were the judge?

Is this a case the courts and the legal system should be involved in?

What was the time line faced by the hospital and the trial court?

1 of 1 DOCUMENT

IN RE A.C., APPELLANT

No. 87-609

District of Columbia Court of Appeals

573 A.2d 1235

September 22, 1988, Argued

April 26, 1990, Decided

JUDGES: Rogers, Chief Judge * , Newman, Ferren, Belson, Terry, Steadman, and Schwelb, Associate Judges, and Mack, Senior Judge. ** Opinion for the court by Associate Judge Terry. Opinion by Associate Judge Belson, concurring in part and dissenting in part.

*

OPINION BY: Judge TERRY

OPINION

***

We are confronted here with two profoundly difficult and complex issues. First, we must determine who has the right to decide the course of medical treatment for a patient who, although near death, is pregnant with a viable fetus. Second, we must establish how that decision should be made if the patient cannot make it for herself -- more specifically, how a court should proceed when faced with a pregnant patient, in extremis, who is apparently incapable of making an informed decision regarding medical care for herself and her fetus. We hold that in virtually all cases the question of what is to be done is to be decided by the patient -- the pregnant woman -- on behalf of herself and the fetus. If the patient is incompetent or otherwise unable to give an informed consent to a proposed course of medical treatment, then her decision must be ascertained through the procedure known as substituted judgment. Because the trial court did not follow that procedure, we vacate its order and remand the case for further proceedings. 2

2 We observe nevertheless that it would be far better if judges were not called to patients' bedsides and required to make quick decisions on issues of life and death. Because judgment in such a case involves complex medical and ethical issues as well as the application of legal principles, we would urge the establishment -- through legislation or otherwise -- of another tribunal to make these decisions, with limited opportunity for judicial review. See Satz v. Perlmutter, 379 So. 2d 359, 360 (Fla. 1980); In re Conroy, 98 N.J. 321, , 486 A.2d 1209, 1221 (1985); In re Hamlin, 102 Wash. 2d 810, , 689 P.2d 1372, 1378-1379 (1984).

We also emphasize that our decision today is the result of considerable deliberation and that we have enjoyed two luxuries unavailable to the trial court: ample time to decide the case, and extensive briefs and oral argument from the parties and several amici. The trial judge had no such advantage. He was called in during the worst of emergencies, with little time for reflection, to make a decision which under the best of circumstances is extraordinarily difficult. Although we conclude that his decision must be set aside, we nevertheless commend him for the painstaking and conscientious manner in which he performed the task before him.

This case came before the trial court when George Washington University Hospital petitioned the *** (court) for declaratory relief as to how it should treat its patient, A.C., who was close to death from cancer and was twenty-six and one-half weeks pregnant with a viable fetus. After a hearing lasting approximately three hours, which was held at the hospital (though not in A.C.'s room), the court ordered that a caesarean section be performed on A.C. to deliver the fetus. Counsel for A.C. immediately sought a stay in this court, which was unanimously denied by a hastily assembled division of three judges. In re A.C., 533 A.2d 611 (D.C. 1987). The caesarean was performed, and a baby girl, L.M.C., was delivered. Tragically, the child died within two and one-half hours, and the mother died two days later.

Counsel for A.C. now maintain that A.C. was competent and that she made an informed choice not to have the caesarean performed. Given this view of the facts, they argue that it was error for the trial court to weigh the state's interest in preserving the potential life of a viable fetus against A.C.'s interest in having her decision respected. They argue further that, even if the substituted judgment procedure had been followed, the evidence would necessarily show that A.C. would not have wanted the caesarean section. Under either analysis, according to these arguments, the trial court erred in subordinating A.C.'s right to bodily integrity in favor of the state's interest in potential life. Counsel for the hospital and for L.M.C. contend, on the other hand, that A.C. was incompetent to make her own medical decisions and that, under the substituted judgment procedure, the evidence clearly established that A.C. would have consented to the caesarean. In the alternative, counsel for L.M.C. argues that even if L.M.C.'s interests and those of the state were in conflict with A.C.'s wishes, it was proper for the trial court to balance their interests and resolve the conflict in favor of surgical intervention.

We do not accept any of these arguments because the evidence, realistically viewed, does not support them.

II

A.C. was first diagnosed as suffering from cancer at the age of thirteen. In the ensuing years she underwent major surgery several times, together with multiple radiation treatments and chemotherapy. A.C. married when she was twenty-seven, during a period of remission, and soon thereafter she became pregnant. She was excited about her pregnancy and very much wanted the child. Because of her medical history, she was referred in her fifteenth week of pregnancy to the high-risk pregnancy clinic at George Washington University Hospital.

On Tuesday, June 9, 1987, when A.C. was approximately twenty-five weeks pregnant, she went to the hospital for a scheduled check-up. Because she was experiencing pain in her back and shortness of breath, an x-ray was taken, revealing an apparently inoperable tumor which nearly filled her right lung. On Thursday, June 11, A.C. was admitted to the hospital as a patient. By Friday her condition had temporarily improved, and when asked if she really wanted to have her baby, she replied that she did.

Over the weekend A.C.'s condition worsened considerably. Accordingly, on Monday, June 15, members of the medical staff treating A.C. assembled, along with her family, in A.C.'s room. The doctors then informed her that her illness was terminal, and A.C. agreed to palliative treatment designed to extend her life until at least her twenty-eighth week of pregnancy. The "potential outcome [for] the fetus," according to the doctors, would be much better at twenty-eight weeks than at twenty-six weeks if it were necessary to "intervene." A.C. knew that the palliative treatment she had chosen presented some increased risk to the fetus, but she opted for this course both to prolong her life for at least another two weeks and to maintain her own comfort. When asked if she still wanted to have the baby, A. C. was somewhat equivocal, saying "something to the effect of 'I don't know, I think so.'" As the day moved toward evening, A.C.'s condition grew still worse, and at about 7:00 or 8:00 p.m. she consented to intubation to facilitate her breathing.

The next morning, June 16, the trial court convened a hearing at the hospital in response to the hospital's request for a declaratory judgment. The court appointed counsel for both A.C. and the fetus, ***The court heard testimony on the facts as we have summarized them, and further testimony that at twenty-six and a half weeks the fetus was viable, i.e., capable of sustained life outside of the mother, given artificial aid. A neonatologist, Dr. Maureen Edwards, testified that the chances of survival for a twenty-six-week fetus delivered at the hospital might be as high as eighty percent, but that this particular fetus, because of the mother's medical history, had only a fifty to sixty percent chance of survival. 3 Dr. Edwards estimated that the risk of substantial impairment for the fetus, if it were delivered promptly, would be less than twenty percent. However, she noted that the fetus' condition was worsening appreciably at a rapid rate, and another doctor -- Dr. Alan Weingold, an obstetrician who was one of A.C.'s treating physicians -- stated that any delay in delivering the child by caesarean section lessened its chances of survival.

3 Dr. Edwards was testifying as an expert, but not as a treating physician. Up to that point she had had "no direct involvement" with either A.C. or her family, but she did hear the testimony of the treating physicians who were familiar with A.C.'s condition.

Regarding A.C.'s ability to respond to questioning and her prognosis, Dr. Louis Hamner, another treating obstetrician, testified that A.C. would probably die within twenty-four hours "if absolutely nothing else is done . . . . As far as her ability to interact, she has been heavily sedated in order to maintain her ventilatory function. She will open her eyes sometimes when you are in the room, but as far as her being able to . . . carry on a meaningful-type conversation . . . at this point, I don't think that is reasonable." When asked whether reducing her medication to "permit recovery of enough cognitive function on her part that we could get any sense from her as to what her preference would be as to therapy," Dr. Hamner replied, "I don't think so. I think her respiratory status has deteriorated to the point where she is [expending] an enormous amount of energy just to keep the heart going." Dr. Weingold, asked the same question, gave a similar answer: that A.C.'s few remaining hours of life "will be shortened by attempting to raise her level of consciousness because that is what is keeping her, in a sense, physiologically compliant with the respirator. If you remove that, then I think that will shorten her survival."

There was no evidence before the court showing that A.C. consented to, or even contemplated, a caesarean section before her twenty-eighth week of pregnancy. There was, in fact, considerable dispute as to whether she would have consented to an immediate caesarean delivery at the time the hearing was held. A.C.'s mother opposed surgical intervention, testifying that A.C. wanted "to live long enough to hold that baby" and that she expected to do so, "even though she knew she was terminal." Dr. Hamner testified that, given A.C.'s medical problems, he did not think she would have chosen to deliver a child with a substantial degree of impairment. Asked whether A.C. had been "confronted with the question of what to do if there were a choice that ultimately had to be made between her own life expectancy and that of her fetus," he replied that the question "was addressed [but] at a later gestational age. We had talked about the possibility at twenty-eight weeks, if she had to be intubated, if this was a terminal event, would we intervene, and the expression was yes, that we would, because we felt at twenty-eight weeks we had much more to offer as far as taking care of the child." Finally, Dr. Hamner stated that "the department as a whole" concluded that "we should abide by the wishes of the family." Dr. Lawrence Lessin, an oncologist and another of A.C.'s treating physicians, testified that in meetings with A.C. he had heard nothing to indicate that, if faced with the decision, she would have refused permission for a caesarean section. Dr. Weingold opposed the operation because he believed A.C. had not seriously considered that she might not survive the birth of her baby. Dr. Weingold made explicit what was implicit in Dr. Hamner's testimony: that "in dealing with her, a message that was sent to her was that the earliest we would feel comfortable in intervening, should there be indication as to either maternal or fetal grounds, would be twenty-eight weeks."

After hearing this testimony 4 and the arguments of counsel, the trial court made oral findings of fact. It found, first, that A.C. would probably die, according to uncontroverted medical testimony, "within the next twenty-four to forty-eight hours"; second, that A.C. was "pregnant with a twenty-six and a half week viable fetus who, based upon uncontroverted medical testimony, has approximately a fifty to sixty percent chance to survive if a caesarean section is performed as soon as possible"; third, that because the fetus was viable, "the state has [an] important and legitimate interest in protecting the potentiality of human life"; and fourth, that there had been some testimony that the operation "may very well hasten the death of [A.C.]," but that there had also been testimony that delay would greatly increase the risk to the fetus and that "the prognosis is not great for the fetus to be delivered post-mortem. . . ." Most significantly, the court found:

The court is of the view that it does not clearly know what [A.C.'s] present views are with respect to the issue of whether or not the child should live or die. She's presently unconscious. As late as Friday of last week, she wanted the baby to live. As late as yesterday, she did not know for sure.

Having made these findings of fact and conclusions of law, ***5 the court ordered that a caesarean section be performed to deliver A.C.'s child.

4 A.C.'s husband was too distraught to testify and uttered only a few words at the hearing.

The court's decision was then relayed to A.C., who had regained consciousness. When the hearing reconvened later in the day, Dr. Hamner told the court:

I explained to her essentially what was going on. . . . I said it's been deemed we should intervene on behalf of the baby by caesarean section and it would give it the only possible chance of it living. Would you agree to this procedure? She said yes. I said, do you realize that you may not survive the surgical procedure? She said yes. And I repeated the two questions to her again [and] asked her did she understand. She said yes. [Emphasis added.]

When the court suggested moving the hearing to A.C.'s bedside, Dr. Hamner discouraged the court from doing so, but he and Dr. Weingold, together with A.C.'s mother and husband, went to A.C.'s room to confirm her consent to the procedure. What happened then was recounted to the court a few minutes later:

THE COURT: Will you bring us up to date? Did you have a conversation with [A.C.]?

DR. WEINGOLD: I did not. I observed the conversation between Dr. Hamner and [A.C.]. Dr. Hamner went into the room to attempt to verify his previous discussion with the patient, with the patient's husband at her right hand and her mother at her left hand. He, to my satisfaction, clearly communicated with [A.C.]. She understood.

THE COURT: You could hear what the parties were saying to one another?

DR. WEINGOLD: She does not make sound because of the tube in her windpipe. She nods and she mouths words. One can see what she's saying rather readily. She asked whether she would survive the operation. She asked [Dr.] Hamner if he would perform the operation. He told her he would only perform it if she authorized it but it would be done in any case. She understood that. She then seemed to pause for a few moments and then very clearly mouthed words several times, I don't want it done. I don't want it done. Quite clear to me.

I would obviously state the obvious and that is this is an environment in which, from my perspective as a physician, this would not be an informed consent one way or the other. She's under tremendous stress with the family on both sides, but I'm satisfied that I heard clearly what she said.

THE COURT: Dr. Hamner, did you wish to elaborate?

DR. HAMNER: That's accurate. I noticed she was much more alert than she had been earlier in the day and was responding to the nurses in the room as well as to all the physicians and went through the same sequence Dr. Weingold noted.

Dr. Weingold later qualified his opinion as to A.C.'s ability to give an informed consent, stating that he thought the environment for an informed consent was non-existent because A.C. was in intensive care, flanked by a weeping husband and mother. He added:

I think she's in contact with reality, clearly understood who Dr. Hamner was. Because of her attachment to him [she] wanted him to perform the surgery. Understood he would not unless she consented and did not consent.

That is, in my mind, very clear evidence that she is responding, understanding, and is capable of making such decisions.

Dr. Hamner stated that the sedation had "worn off enough for her to wake up to this state" and that "the level of drugs in her body is much different from several hours ago." Consequently, despite A.C.'s continued sedation, Dr. Weingold said that she was "quite reactive," and Dr. Hamner concurred.

After hearing this new evidence, the court found that it was "still not clear what her intent is" and again ordered that a caesarean section be performed. ***. The operation took place, but the baby lived for only a few hours, and A.C. succumbed to cancer two days later.

III

The reader may wonder why we are issuing an ***opinion in this case despite its apparent mootness.

****

(We will ) hear it because what occurred here is "capable of repetition, yet evading review." *** The challenged action here is not just the trial court's order but the hospital's handling of the medical emergency, which necessarily was too short to be fully litigated, given A.C.'s rapidly declining condition. Additionally, this is a suit for a declaratory judgment, in which the plaintiff is not A.C. but the hospital. Because the hospital operates a high-risk pregnancy clinic, it will in all likelihood again face a situation in which a pregnant but dying patient is either incapable of consenting to treatment or affirmatively refusing treatment. Indeed, any hospital *** may find itself in the same situation, even one without a specialized facility for such patients. There is thus a reasonable expectation that the challenged action in this case -- i.e., the hospital's decision to seek judicial authorization for a medical procedure affecting a pregnant patient in extremis -- may occur again. *** Accordingly, we conclude that we should entertain this appeal in the exercise of our discretion, even assuming that it is partially or wholly moot.

IV

Although we decide this case on the merits of the legal issues, it is important to remember that factual disputes dominate this controversy and determine how the legal issues are framed ***

A. Informed Consent and Bodily Integrity

A number of learned articles have been written about the propriety or impropriety of court-ordered caesarean sections. E.g., Johnsen, The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection, 95 YALE L.J. 599 (1986); Kolder, Gallagher & Parsons, Court-Ordered Obstetrical Interventions, 316 NEW ENG. J. MED. 1192 (1987) (hereafter Obstetrical Interventions); Rhoden, The Judge in the Delivery Room: The Emergence of Court-Ordered Caesareans, 74 CAL. L. REV. 1951 (1986); Robertson, Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, 69 VA. L. REV. 405 (1983). Commentators have also considered how medical decisions for incompetent persons which may involve some detriment or harm to them should be made. E.g., Pollock, Life and Death Decisions: Who Makes Them and by What Standards?, 41 RUTGERS L. REV. 505, 518-540 (1989); Robertson, Organ Donations by Incompetents and the Substituted Judgment Doctrine, 76 COLUM. L. REV. 48 (1976). These and other articles demonstrate the complexity of medical intervention cases, which become more complex with the steady advance of medical technology. From a recent national survey, it appears that over the five years preceding the survey there were thirty-six attempts to override maternal refusals of proposed medical treatment, and that in fifteen instances where court orders were sought to authorize caesarean interventions, thirteen such orders were granted. Obstetrical Interventions, supra, 316 NEW ENG. J. MED. at 1192-1193. Compare Goldberg, Medical Choices During Pregnancy: Whose Decision Is It Anyway?, 41 RUTGERS L. REV. 591, 609 (1989) (finding twelve such cases). ***

In the instant case, *** the evidence is unclear as to whether A.C. was competent when she mouthed her apparent refusal of the caesarean ("I don't want it done"), and it was generally assumed that while the surgery would most likely be highly beneficial to the fetus, it would be dangerous for the mother. ***The procedure may well have been against A.C.'s medical interest, but if she was competent and given the choice, she may well have consented to an operation of significant risk to herself in order to maximize her fetus' chance for survival. From the evidence, however, we simply cannot tell whether she would have consented or not.

Thus our analysis of this case begins with the tenet common to all medical treatment cases: that any person has the right to make an informed choice, if competent to do so, to accept or forego medical treatment. The doctrine of informed consent, based on this principle and rooted in the concept of bodily integrity, is ingrained in our common law. ***To protect the right of every person to bodily integrity, courts uniformly hold that a surgeon who performs an operation without the patient's consent may be guilty of a battery, or that if the surgeon obtains an insufficiently informed consent, he or she may be liable for negligence. Furthermore, the right to informed consent "also encompasses a right to informed refusal." In re Conroy, 98 N.J. 321, , 486 A.2d 1209, 1222 (1985)

In the same vein, courts do not compel one person to permit a significant intrusion upon his or her bodily integrity for the benefit of another person's health. See, e.g., Bonner v. Moran, 75 U.S. App. D.C. 156, 157, 126 F.2d 121, 122 (1941) (parental consent required for skin graft from fifteen-year-old for benefit of cousin who had been severely burned); McFall v. Shimp, 10 Pa. D. & C. 3d 90 (Allegheny County Ct. 1978). In McFall the court refused to order Shimp to donate bone marrow which was necessary to save the life of his cousin, McFall:

The common law has consistently held to a rule which provides that one human being is under no legal compulsion to give aid or to take action to save another human being or to rescue. . . . For our law to compel defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual, and would impose a rule which would know no limits, and one could not imagine where the line would be drawn.

Even though Shimp's refusal would mean death for McFall, the court would not order Shimp to allow his body to be invaded. It has been suggested that fetal cases are different because a woman who "has chosen to lend her body to bring [a] child into the world" has an enhanced duty to assure the welfare of the fetus, sufficient even to require her to undergo caesarean surgery. Robertson, Procreative Liberty, supra, 69 VA. L. REV. at 456. Surely, however, a fetus cannot have rights in this respect superior to those of a person who has already been born. 8

8 There are also practical consequences to consider. What if A.C. had refused to comply with a court order that she submit to a caesarean? Under the circumstances, she obviously could not have been held in civil contempt and imprisoned or required to pay a daily fine until compliance. Enforcement could be accomplished only through physical force or its equivalent. A.C. would have to be fastened with restraints to the operating table, or perhaps involuntarily rendered unconscious by forcibly injecting her with an anesthetic, and then subjected to unwanted major surgery. Such actions would surely give one pause in a civilized society, especially when A.C. had done no wrong.

Courts have generally held that a patient is competent to make his or her own medical choices when that patient is capable of "the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each." Thus competency in a case such as this turns on the patient's ability to function as a decision-maker, acting in accordance with her preferences and values. ***

****

This court and others, while recognizing the right to accept or reject medical treatment, have consistently held that the right is not absolute. In some cases, especially those involving life-or-death situations or incompetent patients, the courts have recognized four countervailing interests that may involve the state as parens patriae: preserving life, preventing suicide, maintaining the ethical integrity of the medical profession, and protecting third parties. Neither the prevention of suicide nor the integrity of the medical profession has any bearing on this case. Further, the state's interest in preserving life must be truly compelling to justify overriding a competent person's right to refuse medical treatment.. This is equally true for incompetent patients, who have just as much right as competent patients to have their decisions made while competent respected, even in a substituted judgment framework.

In those rare cases in which a patient's right to decide her own course of treatment has been judicially overridden, courts have usually acted to vindicate the state's interest in protecting third parties, even if in fetal state. *** Every person has the right, under the common law and the Constitution, to accept or refuse medical treatment. This right of bodily integrity belongs equally to persons who are competent and persons who are not. Further, it matters not what the quality of a patient's life may be; the right of bodily integrity is not extinguished simply because someone is ill, or even at death's door. To protect that right against intrusion by others -- family members, doctors, hospitals, or anyone else, however well-intentioned -- we hold that a court must determine the patient's wishes by any means available, and must abide by those wishes unless there are truly extraordinary or compelling reasons to override them. When the patient is incompetent, or when the court is unable to determine competency, the substituted judgment procedure must be followed.

From the record before us, we simply cannot tell whether A.C. was ever competent, after being sedated, to make an informed decision one way or the other regarding the proposed caesarean section. The trial court never made any finding about A.C.'s competency to decide. Undoubtedly, during most of the proceedings below, A.C. was incompetent to make a treatment decision; that is, she was unable to give an informed consent based on her assessment of the risks and benefits of the contemplated surgery. The court knew from the evidence that A.C. was sedated and unconscious, and thus it could reasonably have found her incompetent to render an informed consent; however, it made no such finding. On the other hand, there was no clear evidence that A.C. was competent to render an informed consent after the trial court's initial order was communicated to her.

We think it is incumbent on any trial judge in a case like this, unless it is impossible to do so, to ascertain whether a patient is competent to make her own medical decisions. Whenever possible, the judge should personally attempt to speak with the patient and ascertain her wishes directly, rather than relying exclusively on hearsay evidence, even from doctors. We have no reason to believe that, if competent, A.C. would or would not have refused consent to a caesarean. We hold, however, that without a competent refusal from A.C. to go forward with the surgery, and without a finding through substituted judgment that A.C. would not have consented to the surgery, it was error for the trial court to proceed to a balancing analysis, weighing the rights of A.C. against the interests of the state.

15 We recognize, of course, that this will not always be feasible. Our expression of a preference for personal observation by a trial judge "whenever possible" should not be construed as a criticism of the trial judge in this case for failing to move the hearing to A.C.'s bedside.

There are two additional arguments against overriding A.C.'s objections to caesarean surgery. First, as the American Public Health Association cogently states in its amicus curiae brief:

Rather than protecting the health of women and children, court-ordered caesareans erode the element of trust that permits a pregnant woman to communicate to her physician -- without fear of reprisal -- all information relevant to her proper diagnosis and treatment. An even more serious consequence of court-ordered intervention is that it drives women at high risk of complications during pregnancy and childbirth out of the health care system to avoid coerced treatment. 16

Second, and even more compellingly, any judicial proceeding in a case such as this will ordinarily take place -- like the one before us here -- under time constraints so pressing that it is difficult or impossible for the mother to communicate adequately with counsel, or for counsel to organize an effective factual and legal presentation in defense of her liberty and privacy interests and bodily integrity. Any intrusion implicating such basic values ought not to be lightly undertaken. ***

****

B. Substituted Judgment

In the previous section we discussed the right of an individual to accept or reject medical treatment. We concluded that if a patient is competent and has made an informed decision regarding the course of her medical treatment, that decision will control in virtually all cases. Sometimes, however, as our analysis presupposes here, a once competent patient will be unable to render an informed decision. In such a case, we hold that the court must make a substituted judgment on behalf of the patient, based on all the evidence. This means that the duty of the court, "as surrogate for the incompetent, is to determine as best it can what choice that individual, if competent, would make with respect to medical procedures."

Under the substituted judgment procedure, the court as decision-maker must "substitute itself as nearly as may be for the incompetent, and . . . act upon the same motives and considerations as would have moved her . . . ." The concept of substituted judgment, which has its roots in English law ***

We begin with the proposition that the substituted judgment inquiry is primarily a subjective one: as nearly as possible, the court must ascertain what the patient would do if competent. ***

Because it is the patient's decisional rights which the substituted judgment inquiry seeks to protect *** the greatest weight should be given to the previously expressed wishes of the patient. This includes prior statements, either written or oral, even though the treatment alternatives at hand may not have been addressed. *** The court should also consider previous decisions of the patient concerning medical treatment, especially when there may be a discernibly consistent pattern of conduct or of thought. Thus in a case such as this it would be highly relevant that A.C. had consented to intrusive and dangerous surgeries in the past, and that she chose to become pregnant and to protect her pregnancy by seeking treatment at the hospital's high-risk pregnancy clinic. It would also be relevant that she accepted a plan of treatment which contemplated caesarean intervention at the twenty-eighth week of pregnancy, even though the possibility of a caesarean during the twenty-sixth week was apparently unforeseen. On the other hand, A.C. agreed to a plan of palliative treatment which posed a greater danger to the fetus than would have been necessary if she were unconcerned about her own continuing care. Further, when A.C. was informed of the fatal nature of her illness, she was equivocal about her desire to have the baby.

Courts in substituted judgment cases have also acknowledged the importance of probing the patient's value system as an aid in discerning what the patient would choose. We agree with this approach. Most people do not foresee what calamities may befall them; much less do they consider, or even think about, treatment alternatives in varying situations. The court in a substituted judgment case, therefore, should pay special attention to the known values and goals of the incapacitated patient, and should strive, if possible, to extrapolate from those values and goals what the patient's decision would be.

Although treating physicians may be an invaluable source of such information about a patient, the family will often be the best source. Family members or other loved ones will usually be in the best position to say what the patient would do if competent. 19 The court should be mindful, however, that while in the majority of cases family members will have the best interests of the patient in mind, sometimes family members will rely on their own judgments or predilections rather than serving as conduits for expressing the patient's wishes. This is why the court should endeavor, whenever possible, to make an in-person appraisal "of the patient's personal desires and ability for rational choice. In this way the court can always know, to the extent possible, that the judgment is that of the individual concerned and not that of those who believe, however well-intentioned, that they speak for the person whose life is in the balance."

19 Nevertheless, when a court is called upon to make a decision or to sanction one, it is frequently because there is a conflict as to treatment choice among family members, physicians, or both. Were family members and physicians in complete agreement, it is unlikely that a court would be brought into the discussion.

20 The family's primacy in aiding the court as surrogate decision-maker may be subject to challenge for a variety of reasons. For example, grieving family members may themselves be unable to make or communicate an informed decision. There may also be conflicting interests, or family members may be inclined for their own reasons to disregard what the patient herself would want. See 1982 PRESIDENT'S COMMISSION REPORT, supra, at 183. On the other hand, we think it proper for the court to conclude that the patient might consider the needs of her family in making a treatment decision. See In re Roe, supra, 383 Mass. at , 421 N.E.2d at 58.

In short, to determine the subjective desires of the patient, the court must consider the totality of the evidence, focusing particularly on written or oral directions concerning treatment to family, friends, and health-care professionals. The court should also take into account the patient's past decisions regarding medical treatment, and attempt to ascertain from what is known about the patient's value system, goals, and desires what the patient would decide if competent.

After considering the patient's prior statements, if any, the previous medical decisions of the patient, and the values held by the patient, the court may still be unsure what course the patient would choose. In such circumstances the court may supplement its knowledge about the patient by determining what most persons would likely do in a similar situation. When the patient is pregnant, however, she may not be concerned exclusively with her own welfare. Thus it is proper for the court, in a case such as this, to weigh (along with all the other factors) the mother's prognosis, the viability of the fetus, the probable result of treatment or non-treatment for both mother and fetus, and the mother's likely interest in avoiding impairment for her child together with her own instincts for survival.

Additionally, the court should consider the context in which prior declarations, treatment decisions, and expressions of personal values were made, including whether statements were made casually or after contemplation, or in accordance with deeply held beliefs. Finally, in making a substituted judgment, the court should become as informed about the patient's condition, prognosis, and treatment options as one would expect any patient to become before making a treatment decision.. Obviously, the weight accorded to all of these factors will vary from case to case.

C. The Trial Court's Ruling

*** The trial court, faced with an issue affecting life and death, was forced to make a decision with almost no time for deliberation. Nevertheless, after reviewing the transcript of the hearing and the court's oral findings, it is clear to us that the trial court did not follow the substituted judgment procedure. On the contrary, the court's specific finding before its decision was communicated to A.C. was as follows:

The court is of the view that it does not clearly know what [A.C.'s] present views are with respect to the issue of whether or not the child should live or die. She's presently unconscious. As late as Friday of last week, she wanted the baby to live. As late as yesterday, she did not know for sure.

The court did not go on, as it should have done, to make a finding as to what A.C. would have chosen to do if she were competent. Instead, the court undertook to balance the state's and L.M.C.'s interests in surgical intervention against A.C.'s perceived interest in not having the caesarean performed.

After A.C. was informed of the court's decision, she consented to the caesarean; moments later, however, she withdrew her consent. The trial court did not then make a finding as to whether A.C. was competent to make the medical decision or whether she had made an informed decision one way or the other. Nor did the court then make a substituted judgment for A.C. Instead, the court said that it was "still not clear what her intent is" and again ordered the caesarean.

It is that order which we must now set aside. What a trial court must do in a case such as this is to determine, if possible, whether the patient is capable of making an informed decision about the course of her medical treatment. If she is, and if she makes such a decision, her wishes will control in virtually all cases. If the court finds that the patient is incapable of making an informed consent (and thus incompetent), then the court must make a substituted judgment. This means that the court must ascertain as best it can what the patient would do if faced with the particular treatment question. Again, in virtually all cases the decision of the patient, albeit discerned through the mechanism of substituted judgment, will control. We do not quite foreclose the possibility that a conflicting state interest may be so compelling that the patient's wishes must yield, but we anticipate that such cases will be extremely rare and truly exceptional. This is not such a case.

Having said that, we go no further. *** Throughout this opinion we have stressed that the patient's wishes, once they are ascertained, must be followed in "virtually all cases," unless there are "truly extraordinary or compelling reasons to override them,". Indeed, some may doubt that there could ever be a situation extraordinary or compelling enough to justify a massive intrusion into a person's body, such as a caesarean section, against that person's will. Whether such a situation may someday present itself is a question that we need not strive to answer here. We see no need to reach out and decide an issue that is not presented on the record before us; this case is difficult enough as it is. We think it sufficient for now to chart the course for future cases resembling this one, and to express the hope that we shall not be presented with a case in the foreseeable future that requires us to sail off the chart into the unknown. 23

***

Accordingly, we vacate the order of the trial court ***.

Vacated and remanded.

JUSTICE BELSON dissenting in part: EDITOR’S NOTE what appears below is the opinion of Judge Belson who disagreed with the decision of the majority and supported the decision of the trial court to use a balancing test instead of the substituted judgment rule.

****

.

The balancing test should be applied in instances in which women become pregnant and carry an unborn child to the point of viability. This is not an unreasonable classification because, I submit, a woman who carries a child to viability is in fact a member of a unique category of persons. Her circumstances differ fundamentally from those of other potential patients for medical procedures that will aid another person, for example, a potential donor of bone marrow for transplant. This is so because she has undertaken to bear another human being, and has carried an unborn child to viability. Another unique feature of the situation we address arises from the singular nature of the dependency of the unborn child upon the mother. A woman carrying a viable unborn child is not in the same category as a relative, friend, or stranger called upon to donate bone marrow or an organ for transplant. Rather, the expectant mother has placed herself in a special class of persons who are bringing another person into existence, and upon whom that other person's life is totally dependent. Also, uniquely, the viable unborn child is literally captive within the mother's body. No other potential beneficiary of a surgical procedure on another is in that position.

For all of these reasons, a balancing becomes appropriate in those few cases where the interests we are discussing come into conflict. To so state is in no sense to fail to recognize the extremely strong interest of each individual person, including of course the expectant mother, in her bodily integrity, her privacy, and, where involved, her religious beliefs.

****

I am concerned that the majority's emphasis on the "extremely rare and truly exceptional" nature of the circumstances in which the unborn child's rights may prevail may move the law toward the extinguishment of the rights of unborn children. ***

I next address the sensitive question of how to balance the competing rights and interests of the viable unborn child and the state against those of the rare expectant mother who elects not to have a caesarean section necessary to save the life of her child. 11 The indisputable view that a woman carrying a viable child has an extremely strong interest in her own life, health, bodily integrity, privacy, and religious beliefs necessarily requires that her election be given correspondingly great weight in the balancing process. In a case, however, where the court in an exercise of a substituted judgment has concluded that the patient would probably opt against a caesarean section, the court should vary the weight to be given this factor in proportion to the confidence the court has in the accuracy of its conclusion. Thus, in a case where the indicia of the incompetent patient's judgment are equivocal, the court should accord this factor correspondingly less weight. The appropriate weight to be given other factors will have to be worked out by the development of law in this area, and cannot be prescribed in a single court opinion. Some considerations obviously merit special attention in the balancing process. One such consideration is any danger to the mother's life or health, physical or mental, including the relatively small but still significant danger that necessarily inheres in any caesarean delivery, and including especially any danger that exceeds that level. 12 The mother's religious beliefs as they relate to the operation would appear to deserve inclusion in the balancing process.

On the other side of the analysis, it is appropriate to look to the relative likelihood of the unborn child's survival. This could range from the situation ***where the full-term child's chances for survival were apparently excellent, through a case like the one before us where the unborn child's chances for survival were from fifty to sixty percent, and on to cases where the child's chances for survival are less than even. The child's interest in being born with as little impairment as possible should also be considered. 13 This may weigh in favor of a delivery sooner rather than later. The most important factor on this side of the scale, however, is life itself, because the viable unborn child that dies because of the mother's refusal to have a caesarean delivery is deprived, entirely and irrevocably, of the life on which the child was about to embark.

***(I believe that the trial court) did not commit *** error in ***performing a balancing test***

Weighed in the balance against ordering the procedure were two considerations that were central to the entire proceeding: the invasive and serious nature of the proposed surgery and the fact that such surgery cannot ordinarily be performed without the consent of the patient. Under the peculiar circumstances of this case, the influence of these factors was diminished by the fact that it was not clear whether A.C. would have consented to the surgery or not. Before events began to close in on her, A.C. had agreed to a caesarean at twenty-eight weeks. Thus, she was not averse, in principle, to having that particular type of surgery. What was unresolved was whether she would consent to that surgery at twenty-six and one-half weeks, when the unborn child's chances of survival were somewhat reduced and the chances of impairment to the child somewhat enhanced. It was clear that she had intended all along to carry her unborn child until the point the child could be successfully delivered, and she persevered in that intention even when she knew she would not live long, if at all, after her child was born. Even in the tragically difficult circumstances in which A.C. found herself at the very time of the court's proceedings, she first appeared in her sedated state to agree to the procedure and then apparently to disagree. Under the circumstances, the court could deem these matters, usually most pertinent to a determination of substituted judgment, to lessen the net weight of the factors that weighed against the performance of the surgery. 14 Also to be considered in the balance was the rather minimal, but nevertheless undisputable, additional risk that caesarean delivery presented for the mother.

14 An additional factor, which is difficult to assess but probably deserves some consideration, is that caesarean deliveries are quite common. According to the Bureau of the Census, the Department of Commerce, 24.1 per cent of all births were by caesarean section in the year 1986, the latest year for which it furnished statistics. STATISTICAL ABSTRACT OF THE UNITED STATES 65 (109th ed. 1989). Without detracting from the seriousness of the caesarean procedure, its invasiveness, and the somewhat greater risk it entails, it seems reasonable to consider the fact that nearly a quarter of all births are caesarean not only in the substituted judgment analysis but also in the balancing analysis that should resolve a conflict between mother and unborn child.

Turning to the interest of the unborn child in living and the parallel interest of the state in protecting that life, the evidence indicated that the child had a fifty to sixty percent chance of survival and a less than twenty percent chance of entering life with a serious handicap such as cerebral palsy or mental retardation. The evidence also showed that a delay in delivering the child would have increased the likelihood of a handicap it. ***

For the reasons stated above, I would affirm.

Edits Ó 2011 Craig D. Heckman