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State Can Pull Life Support For State Ward, Court Rules
by Dave Reynolds, Inclusion Daily Express
This article is reproduced here under special arrangement with Inclusion Daily Express Email News Service.

LEXINGTON, KY, Aug. 27, 2004 --The Kentucky Supreme Court ruled Thursday that the state can act to remove life support from a state ward with a mental disability, when that person is "permanently unconscious", there is "clear and convincing evidence" that the person will not recover, and it is in the person's "best interest".

In a 5-2 decision, the court added that, when a hospital's ethics committee agrees to terminate life support, and the person does not have a guardian, doctors do not need to seek court approval to do so, nor is it necessary to have a guardian appointed to represent the person.

A dissenting justice wrote that the state has a conflict of interest, however, when it is also responsible for the person's care and treatment.

The case involved Matthew Woods, a man who was deemed incompetent at age 18 because of his mental retardation, and later became a ward of the Commonwealth of Kentucky. According to court documents, a judge appointed the Cabinet for Human Resources as Woods' legal guardian in 1991, giving the state agency authority to make certain decisions for him, including consent to medical procedures.

On April 18, 1995, when Woods was 53 and living in a group home, he had a massive heart attack while a friend transported him to a hospital for a severe asthma attack. Doctors at St. Joseph's Hospital immediately got Woods on a mechanical ventilator, but not until after he fell into a coma and his brain had been without oxygen for several minutes.

His attending physician, Dr. Jeremiah Suhl, determined that Woods was "permanently unconscious" -- a "condition more severe than a persistent vegetative state" -- and that he would not recover. Suhl and a hospital neurologist recommended that the ventilator be removed, noting that Woods would probably live less than 48 hours without the ventilator. Twenty-four days after Woods was brought to St. Joseph's, the hospital's 11-member ethics committee agreed.

CHR officials then filed a motion in District Court, asking for permission to remove Woods' ventilator. That court appointed Lexington attorney Bruce Simpson as guardian ad litem to represent Woods' interests. Simpson disagreed with the state, arguing that Woods -- not the state -- should make the decision to pull life support.

That September, the district court ruled that Kentucky's 1994 Living Will Directive Act allows a judicially-appointed guardian -- in this case the state -- of an adult patient who "lacks decisional capacity and has not made an 'advance directive,' to make health care decisions on behalf of the patient, including the withdrawal of artificial life-support systems, without obtaining advance judicial approval, so long as the guardian acts in good faith and in the best interest of the patient."

Unfortunately, even if Woods had indicated that he wanted to stay alive in this situation, the state had no legal obligation to follow those wishes because he was considered legally incompetent to make such decisions.

Woods died on June 2, 1996, of natural causes, without regaining consciousness.

Simpson appealed the case to the Circuit Court, arguing that the law was unconstitutional, that it violates both public policy and modern ethical standards, and that a guardian should have to provide clear and convincing evidence that removing life support is in the person's best interests.

Simpson lost his appeal with the Circuit Court, along with a later challenge to the Court of Appeals.

In his oral arguments before the Kentucky Supreme Court in 2001, Simpson said that the state had a conflict of interest when it decided to stop medical treatment, considering that Wood's $2,000-a-day medical bill was being paid by the state.

The Supreme Court's 39-page ruling Thursday agreed with the lower courts, except for the law's provision regarding standard of proof.

"In that respect, we hold that the withdrawal of artificial life support from a patient is prohibited absent clear and convincing evidence that the patient is permanently unconscious or in a persistent vegetative state and that withdrawing life support is in the patient's best interest," Justice William Cooper wrote for the majority.

But Justice Donald Wintersheimer, in a highly critical dissenting opinion, called the court's decision "disturbing".

"It is deeply disappointing that this Court would decide to allow an agency of this State to end the life of a totally innocent ward of that very same State," Wintersheimer wrote. "It is even more shameful to realize that the State would seek to terminate the innocent human life of a person entrusted to its care and protection."

Wintersheimer pointed out that there is no way to know whether a person will not recover from unconsciousness, that "the only person permanently unconscious is one that is already dead."

Wintersheimer suggested that Woods' treatment may have limited his recovery. He referred to testimony by Dr. Suhl in which he indicated that Woods showed signs of recovery weeks after the request had been made for him to be taken off life support. In fact, one doctor pulled his original recommendation for removing life support, based on his belief that Woods was improving.

According to Dr. Suhl's statements, Woods had been given a paralyzing drug intended to reduce an "occasional jerking motion". When the drug was withdrawn, "his myoclonus (twitching/spasms) improved," Dr. Suhl noted. In the days that followed, the doctor said, Woods opened his eyes and looked at Suhl when he was awakened, and appeared to show pain when he was injected with an intravenous needle.

"In other words," Wintersheimer wrote, "when the paralyzing drug had been stopped Woods' condition improved. Restarting the medication placed Woods back in a state of perceived unconsciousness."

Simpson told the Courier-Journal that he was disappointed in Thursday's ruling, but that he would ask the court to reconsider. He added that he may take the case to the U.S. Supreme Court.

"I think it's an important public policy matter," he said.

Woods v. Kentucky (Supreme Court of Kentucky) [PDF format requires free Adobe Acrobat Reader]

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