McAULIFFE, Judge, dissenting.

I agree with the holdings of the Court in Parts I, II, III, and V of the opinion, although not with all of the language employed. I dissent because I disagree with Part IV, and with the result.

The Court and the trial judge pay lip service to the concept of "substituted judgment," but then refuse to apply it in any meaningful way. The Court correctly states that "[t]o protect the right [of self-determination] for incompetent persons, and to permit its exercise, courts apply a rule of `substituted judgment.'" Court's opinion at 214. The Court also correctly notes that substituted judgment does not mean simply substituting the judgment of the guardian for that of the ward. Id. The Court errs, however, in defining the inquiry of substituted judgment to be "whether Ronald, while competent, sufficiently had evidenced his views, one way or the other, to enable the court to determine, by clear and convincing evidence, what Ronald's decision would be under the present circumstances." Id. at 215. That inquiry focuses upon prior statements made by the ward. The substituted judgment approach comes into play when the ward has made no prior statements bearing on the issue, or the statements attributed to the ward do not produce a clear and convincing answer.

The substituted judgment approach that I would apply in this case has been described as "intended to ensure that the surrogate decisionmaker effectuates as much as possible the decision that the incompetent patient would make if he or she were competent." Matter of Jobes, 108 N.J. 394, 529 A.2d 434, 444 (1987). See also Matter of Conroy, 98 N.J. 321, 486 A.2d 1209, 1229 (1985); In re Guardianship of Browning, 568 So.2d 4, 13 (Fla. 1990). The New Jersey Supreme Court explained further:

Under the substituted judgment doctrine, where an incompetent's wishes are not clearly expressed, a surrogate decisionmaker considers the patient's personal value system for guidance. The surrogate considers the patient's prior statements about and reactions to medical issues, and all the facets of the patient's personality that the surrogate is familiar with — with, of course, particular reference to his or her relevant philosophical, theological, and ethical values — in order to extrapolate what course of medical treatment the patient would choose.

Matter of Jobes, supra, 529 A.2d at 444 (footnote and citation omitted).

Semantics may be a part of the problem here. "Substituted judgment" is not a particularly apt term — the very result we wish to avoid is the substitution of someone else's judgment for that of the ward. Rather, the aim is to determine, by reference to all that may be known about the ward, what decision he or she would make if presently competent and possessed of complete information concerning all relevant factors. "Constructed individual judgment" comes to mind as a possibly more appropriate term, but I suspect that combination of words has its own limitations.

Substituted judgment should not be viewed as something separate and distinct from the inquiries concerning the ward's prior statements or formal written declarations evidencing intent. The question in cases such as this is what the ward would wish done under the present circumstances. An explicit written direction, validly made when competent, and not otherwise suspect, may furnish the complete answer. Absent such a document, previous oral declarations may be sufficient to afford clear and convincing evidence of the ward's intentions. When prior statements alone do not provide the requisite evidence of intent, those seeking to ascertain the wishes of the ward should add to the relevant considerations all that is known about the ward and his condition and prognosis, and determine from that full body of information whether the intent of the ward may be ascertained with the necessary level of confidence.

Those who seek to ascertain the wishes of the ward will not necessarily be judges. Decisions of this kind are often made by the immediate members of the patient's family, in conference with attending physicians who act in accordance with the ethical standards of their profession and, where appropriate, in accordance with the standards established by an involved hospital and its designated committee. I agree with the Attorney General's warning that "[t]he Court should be especially cautious about casting a pall of legal uncertainty over established practices in the clinical setting, where doctors and patients' families together often make these excruciatingly difficult decisions about life-sustaining medical treatment." Brief of State of Maryland as Amicus Curiae at 15. In the instant case, however, where family members do not agree, and when the question is presented as the appropriate decision to be made by a court-appointed guardian, court intervention is clearly required. See Maryland Code (1974, 1991 Repl. Vol.) § 13-708(c) of the Estates and Trusts Article.

A trial judge's inquiry when applying the substituted judgment approach is necessarily broad in scope. As the New Jersey Supreme Court pointed out in Matter of Conroy, supra, 486 A.2d at 1230, "all evidence tending to demonstrate a person's intent with respect to medical treatment should properly be considered. . . ." In the words of the Attorney General of Maryland, "[t]he task is like assembling a mosaic from the tesserae of the person's life." State's Brief at 19. Factors to be considered include, but are not limited to: evidence of the ward's views about life-sustaining medical treatment, in light of the ward's diagnosis and prognosis; the ward's reaction to medical treatment of others; the ward's religious beliefs and personal moral values; the ward's attitudes concerning doctors, hospitals, and nursing homes and any prior experiences with the health care system; and, most broadly, the ward's value system. The question we thereby attempt to answer may be stated in this hypothetical form: If Ronald Mack, complete with his personality, predilections, philosophies, beliefs, and values were given competency for a day, and fully informed concerning what had transpired, the condition and environment to which he would shortly and permanently return, the beliefs and desires of his family members, and the prognosis in his case, what decision would he make concerning the discontinuance of artificially administered nutrition and hydration?

After studying the trial judge's opinion in this case, I am not at all certain that he considered all the factors relevant to a substituted judgment analysis. Perhaps of greater concern to me is the Court's opinion, which affirms the trial judge by not requiring the inquiry which I believe is inherent in the substituted judgment approach, and which should be required here.

According to the well-documented findings of the trial judge, Ronald Mack exists in a persistent vegetative state. He has been in that state for nine years and he will never recover. He is "alive" in the legal sense, because his brain stem is intact and permits vegetative functions. He exists only because of "the advance of medical technology capable of sustaining life well past the point where natural forces would have brought certain death in earlier times. . . ." Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 270, 110 S.Ct. 2841, 2847, 111 L.Ed.2d 224 (1990). He is permanently and irreversibly unconscious. He cannot eat, drink, or cough. He has no cognitive ability — he cannot see, hear, speak, touch, or think. He has no feeling or sensation of pain or pleasure. He is incapable of experiencing joy, love, hate, or emotion of any kind. He is emaciated, his hands are clenched, and his limbs are bent and rigid. He has a tracheostomy to permit suctioning of lung secretions, and a surgically implanted gastrostomy tube to permit introduction of nutrients directly into the stomach. He has no control of bladder or bowels. He suffers recurrent seizures and skin rashes. He has heightened physical reflexes, without awareness, and on one occasion nearly bit off his bottom lip.

With the quality nursing care that is currently being given Ronald by the Veteran's Administration, life in this form may continue for 30 to 40 years. If the gastrostomy tube is removed and no other artificial feeding is initiated, death will occur, without appreciation of pain or discomfort, in seven to fourteen days.

Ronald's condition is permanent and irreversible. No one has ever recovered after having been in a persistent vegetative state for at least two years. See Cruzan, supra, 497 U.S. at 309, n. 8, 110 S.Ct. at 2868, n. 8 (Brennan, J., dissenting) (citing Snyder, Cranford, Rubens, Bundlie, Rockswold, Delayed Recovery from Postanoxic Persistent Vegetative State, 14 Annals Neurol. 156 (1983)). There is no reasonable hope of a cure or remission to be brought about by anticipated advances in medical science during Ronald's life expectancy.

Given these facts alone, I believe most reasonable persons would elect to terminate this existence. As Justice Scalia noted in his concurring opinion in Cruzan, society is faced with "the constantly increasing power of science to keep the human body alive for longer than any reasonable person would want to inhabit it." 497 U.S. at 292, 110 S.Ct. at 2859. In the absence of evidence to the contrary, one may certainly infer that Ronald would share that view. There is little, if any, evidence that I see in the record to suggest that he would not. When that common sense consideration is added to the mix of relevant factors, the usual result will be a determination in favor of withdrawing artificial nutrition. If, however, the evidence shows that the ward harbored religious, philosophical, or other beliefs in favor of the preservation of "life" at all costs, no matter how barren and hopeless, the result would be different. And, because the ward, if competent, would surely consider the desires and feelings of his family, those factors would have to be considered, and might produce a contrary result.

Each individual is different. Careful and painstaking consideration must be given to the relevant facts of the ward's life, personality, and condition before any attempt is made to determine what the ward would have decided in those circumstances. I wish to emphasize, however, my strong belief that it is not only permissible, but indeed necessary, to attribute to the ward the inclination or desire of an ordinary, prudent person under the same circumstances, unless and until there is evidence that he or she would not have shared those views, and to give that factor the heavy weight it deserves in a case such as this.

As I read the Court's opinion, a trial judge's inquiry is essentially limited to an attempt to determine the intent the ward may have formed when competent. Thus, even if those members of Ronald's family who now object to the withholding of artificially administered nutrition and hydration had instead joined with the wife in requesting court approval of that action, the trial judge would have been powerless to grant it because of his inability to find clear and convincing evidence of Ronald's prior intent. I strongly disagree. I would vacate the judgment and remand to the trial court for further proceedings employing the substituted judgment approach.

MURPHY, C.J., joins in this opinion.

CHASANOW, Judge, concurring and dissenting opinion.

I. THE GUARDIANSHIP DECISION

I believe the majority's opinion fails to take into consideration some of the factual background that was the basis for the trial judge's guardianship decision. The majority also fails to take into consideration two basic legal principles: 1) when a trial judge sits without a jury, an appellate court will not set aside the trial court's judgment on the evidence unless it was clearly erroneous, Maryland Rule 8-131(c); and 2) a trial judge's choice of guardian of the person will not be reversed absent an abuse of discretion. Kicherer v. Kicherer, 285 Md. 114, 119, 400 A.2d 1097, 1101 (1979). The trial judge, Fader, J., made a carefully considered, very difficult decision. He was not clearly erroneous and did not abuse his discretion.

In reviewing whether a trial court was clearly erroneous in rendering its decision, this Court must view the facts and all reasonable inferences in the light most favorable to the prevailing party. A trial court's decision will not be clearly erroneous where there was substantial evidence on the record to support the trial judge's decision. I.W. Berman Prop. v. Porter Bros., 276 Md. 1, 12, 344 A.2d 65, 72 (1975). To put the trial court's decision in perspective, we must examine the earlier federal litigation that engendered the instant suit.

In 1985, the Veterans Administration (V.A.) contacted Deanna Mack, who was then living in Florida, and inquired whether she wished to have her husband Ronald transferred from Maryland to a V.A. hospital in Florida. She declined to authorize the transfer. In a conversation with a nurse several years later, Deanna learned that by virtue of her Florida "plenary" guardianship, she might be able to order that Ronald's nutrition and hydration tube (the gastrostomy tube) be removed even without court approval if Ronald were hospitalized in Florida. Deanna contacted a Florida attorney who apparently advised her that the preferable course of action would be to have Ronald transferred to Florida and to secure a Florida court order authorizing the V.A. to remove the gastrostomy tube. Deanna, through counsel, filed a petition in Florida to remove the gastrostomy tube and simultaneously filed a request in Maryland that the V.A. release Ronald to her for transfer to a V.A. hospital in Florida.

Apparently, the only way that Ronald's father, Ronald W. Mack (whom, in deference to his seniority, I will refer to as Mr. Mack), could stop the V.A. from releasing Ronald for transfer to Florida, and to his certain death, was to seek an injunction. Mr. Mack filed suit in the United States District Court for the District of Maryland seeking to enjoin Ronald's transfer to Florida. The District Court, Garbis, J., recognized that if Deanna were Ronald's guardian, then the V.A. would have to comply with her request to release Ronald to her for transfer to Florida where she resides. Judge Garbis further recognized that, once Ronald was in Florida, Deanna would proceed with her litigation to have the gastrostomy tube removed. If, however, Mr. Mack were Ronald's guardian, then the V.A. would abide by his wishes regarding whether Florida's or Maryland's V.A. hospital would care for Ronald.

In his Memorandum Decision, Judge Garbis noted that "V.A. counsel acknowledged that there is a question regarding the status of Deanna V. Mack as guardian. Therefore, until her status is clarified to the satisfaction of the V.A., [Ronald] will not be released to her custody. However, if the V.A. were to be satisfied that Deanna V. Mack was, in fact, [Ronald's] guardian, it would comply with her demand." Judge Garbis issued a preliminary injunction enjoining Ronald's transfer to Florida pending a determination in a state court as to "whether Deanna V. Mack is, in fact, the duly authorized guardian of the person of Ronald W. Mack."

Deanna and Mr. Mack filed the instant guardianship petitions in compliance with Judge Garbis' request that the parties expeditiously obtain a state court determination as to who is the guardian of Ronald's person. That determination would then resolve the issue of whether the injunction against Ronald's transfer to Florida would remain in effect or be terminated.

Judge Fader in his carefully crafted opinion noted:

"This case came to the Circuit Court for Baltimore County as a result of a Temporary Injunction issued by The Honorable Marvin J. Garbis, Associate Judge of the United States District Court for Maryland, Civil Action, MJG-91-1314, dated May 30, 1991, forbidding the Fort Howard Veterans Administration Hospital from discharging Ronald W. Mack from that hospital, except upon order of court which temporary injunction, in effect, left it to this court to decide the underlying issue of guardianship.[52] Judge Garbis issued his order, upon the Complaint of Ronald's father and sister, when Deanna V. Mack stated her intention to the Fort Howard Hospital personnel that she wanted to take her husband back to Florida for the purpose of withdrawing his life-sustaining medical treatment, i.e., the administration of artificial nutrition and hydration.

[52] A copy of the decision and temporary injunction issued by Judge Garbis is a part of the court file."

The undisputed testimony from Deanna, as well as the report of the guardian ad litem, established that if Ronald were transferred to Florida, Deanna intended to and would be able to secure a court order to remove Ronald's gastrostomy tube. It was reasonable for Judge Fader to conclude that if Deanna were appointed guardian, the preliminary injunction would probably be lifted and Ronald would be transferred to Florida. The V.A. had already stated that if Deanna were Ronald's guardian it would comply with her demand. Once Ronald was in Florida, Deanna would be able to have his gastrostomy tube removed.

I submit that the trial judge did not abuse his discretion in ultimately appointing Mr. Mack the guardian of Ronald's person. Maryland Code (1974, 1991 Repl. Vol.), Estates and Trusts Article, § 13-707(a) provides that when a court appoints a guardian, spouses are entitled to a higher priority than parents; however, "for good cause, the court may pass over a person with priority and appoint a person with a lower priority." Estates and Trusts Art., § 13-707(c)(1). The determination of whether "good cause" exists is purely within the discretion of the court. See Kicherer, 285 Md. at 119, 400 A.2d at 1101. Thus, the standard of review of the Court's determination is whether the court below abused its discretion in finding good cause to bypass Deanna Mack and appoint Mr. Mack as guardian. See id. Even the majority agrees with the trial judge that Deanna's views with regard to removing the gastrostomy tube are "a factor in an overall determination." 329 Md. 188, 206, 618 A.2d 744, 753 (1993). This Court, nevertheless, reverses Judge Fader because it believes he treated Deanna's "views" as the sole factor in awarding guardianship and "decided the issue by treating Deanna as disqualified. . . ." Id. at 206, 618 A.2d at 753. Judge Fader did no such thing; he determined guardianship based primarily on the issue that all parties recognized was the overriding issue in this case. The evidence not only permits, but compels, the conclusion that Deanna was seeking this Maryland guardianship of the person over Ronald for one predominant, if not sole purpose — to have Ronald's gastrostomy tube removed. The trial judge's decision was not based on Deanna's "views" about removing Ronald's gastrostomy tube — the decision was based on Deanna's intent to remove Ronald's gastrostomy tube, and her apparent ability to carry out that intent if she were appointed guardian. The trial court as well as this Court have decided Ronald should remain on artificial life support. If Deanna were appointed guardian, it is reasonable to assume the V.A. would transfer Ronald to her home state, Florida, where Deanna's "views" would be Ronald's fate. Judge Fader did not abuse his discretion in addressing this as the predominant reason for denying Deanna's guardianship.

The majority also reverses the trial judge for not addressing the other factors bearing on the issue of guardianship. Specifically, it complains that "there was no finding whether Deanna could or would fulfill the duties of guardian. There was no finding on Ronald, pere's, contention that his geographical proximity to Ronald weighted the best interest scale in favor of appointing the father as guardian." Id. at 204, 618 A.2d at 752 (footnote omitted). I submit these remaining issues did not need to be further addressed by the trial judge because, as a matter of law, they could only favor Mr. Mack, rather than Deanna. In fact and in law, the issue of geographical proximity favors Mr. Mack. Mr. Mack lived close by and visited Ronald approximately once a week. Deanna has moved to Florida, approximately 1,000 miles away from Ronald, and she acknowledges that over the last few years she was only able to visit Ronald once or twice a year. As to geographical proximity, the majority acknowledges that, as a matter of law, "appointment of a resident is preferred." Id. at 204 n. 3, 618 A.2d at 752 n. 3. Indeed, the majority opinion cites two cases for that proposition: Rosin v. United California Bank, 226 Cal.App.2d 166, 37 Cal.Rptr. 830, 833-34 (1964); In re Boutz' Guardianship, 24 Cal.App.2d 644, 76 P.2d 154, 157 (1938). Both of these cases cited by the majority contain the following statement:

"`While in the absence of statutory provisions to the contrary, a nonresident may be appointed guardian, such appointments are not favored, the rule being that a resident should be appointed rather than a nonresident, unless some very strong reason for appointing the latter is made to appear.'"

Rosin, 37 Cal.Rptr. at 833 (quoting Boutz, 76 P.2d at 157).

With respect to Deanna's ability to fulfill the duties of guardianship, prior to seeking this reappointment as Maryland guardian Deanna had demonstrated no interest in performing most of the duties usually associated with guardianship of a person. Approximately seven years ago, Deanna, at her own request, was removed as the Maryland guardian of Ronald's person, and Mr. Mack acted as Ronald's caretaker, if not his legal guardian since that time. It was Mr. Mack, not Deanna, who remained close to Ronald. It was Mr. Mack who, after Deanna renounced her prior Maryland guardianship, supervised Ronald's medical treatment, visited regularly, and provided the attention, kindness, and affection that a guardian should provide. Deanna moved away from Ronald and, for over a half-dozen years, lived with and had a child by another man. Seven years ago, she resisted V.A. efforts to have Ronald transferred to the state where she lives. Her contacts with Ronald were minimal over the last few years and her visits dwindled to approximately one per year. The only way Deanna could be in a position to effectively supervise Ronald's care would be if Ronald were moved to Florida, and it was undisputed that if Ronald were moved to Florida, the care and treatment he would get there would be removal of his gastrostomy tube.

In light of the evidence adduced at trial and the trial judge's authority under § 13-707 (c)(1) of the Estates and Trusts Article to reorder the statutory priorities, I do not understand how the majority can hold that the trial judge abused his discretion in appointing Mr. Mack guardian of the person of his son. There is no need to remand the case and no need for Judge Fader to further address the "issues" of geographical proximity and ability to fulfill the duties of guardian.

II. PERSISTENT VEGETATIVE STATE

The majority begins its analysis of when a court may authorize withdrawal of nutrition and hydration in the same manner as most modern cases. There is a common law right, and perhaps a state and federal constitutional right, of both competent as well as incompetent patients to refuse life-sustaining medical treatment. There must be clear and convincing evidence to justify withdrawal of life-sustaining medical treatment. Artificially administered nutrition and hydration is a form of life-sustaining medical treatment and "court decisions dealing with withdrawing artificially administered nutrition and hydration from a patient who is in a persistent vegetative state analogize the legality of the withdrawal to the cessation of medical treatment for a terminally ill patient." 329 Md. at 205, 618 A.2d at 753. I concur in these portions of the majority opinion, assuming the term "persistent vegetative state" includes only those patients who are in an irreversible vegetative state.

The majority then establishes a test for whether Ronald's gastrostomy tube may be removed, stating:

"the inquiry focuses on whether Ronald, while competent, sufficiently had evidenced his views, one way or the other, to enable the court to determine, by clear and convincing evidence, what Ronald's decision would be under the present circumstances."

329 Md. at 215, 618 A.2d at 757-58. I have two problems with the majority's test. First, I doubt that very many healthy, robust young people, like Ronald was, ever seriously consider that they may someday be in an accident and be reduced to a persistent vegetative state. Even if some did contemplate such a horrible event, how many would have clearly and convincingly formed and evidenced their views that, if in a persistent vegetative state, they would at some point choose to terminate artificial life support or, alternatively, that they would choose to remain in that state until they die of "old age." My second major objection is that, based on the majority's test, infants and other patients who have never been competent and are in a persistent vegetative state may be forever denied court authorization to terminate life-sustaining medical treatment because they did not evidence and could not have evidenced their views not to be indefinitely maintained on life support systems.

The majority states "sustaining Ronald and other persons like him, whose desires concerning the withdrawal of artificial sustenance cannot clearly be determined, is a price paid for the benefit of living in a society that highly values human life." 329 Md. at 222, 618 A.2d at 761. This statement, though evocative, is not cogent since it is doubtful that society "highly values" life in a persistent vegetative state. As one author noted:

"In 1976, the New Jersey Supreme Court held that a parent of Karen Quinlan, a young woman in a permanent vegetative state, could authorize removal of a respirator that was keeping Karen biologically alive. Since then, public opinion polls have revealed an impressive shift of opinion in just one generation from a majority opposed to `pulling the plug' on permanently comatose patients to a large majority — sometimes nearing 90% — in favor of such measures." (Footnotes omitted).

S. Kadish, Letting Patients Die: Legal and Moral Reflections, 80 Cal.L.Rev. 857, 860 (1992).

Medical ethics would permit the withholding of life-sustaining medical treatment for patients in a persistent vegetative state. According to Dr. Timothy James Keay in his amicus curiae brief, the textbook Clinical Ethics has been used for the mandatory course in medical ethics at the University of Maryland School of Medicine for the last four years. That textbook states:

"(1) We propose that the state of an irreversible loss of human cognitive and communicative function implies that a `person' no longer exists in any significant sense of the term. This individual is no longer aware of self in relation to surroundings and never will be again. In our terms life has fallen irretrievably below the threshold considered minimal. (2) As a result, no goals of medicine other than support of organic life are being or will be accomplished. We do not believe this goal, in and of itself, is an independent and overriding goal of medicine. (3) Furthermore, it is difficult to know what `benefit' might mean when the patient now, and never will, be able to appreciate what is being done for him or her. (4) No preferences of the patient are expressed or known. The conjunction of these four factors justifies, in our judgment, a decision not to continue medical intervention — that is, physicians have no ethical obligation to continue treatment. Since it is the duty of physicians to benefit their patients, in the absence of benefit, there is no duty to treat. The same argument does not, in and of itself, justify active euthanasia."

A. Jonsen et al., Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine at 106-07 (2d ed. 1986).

I do not mean to suggest that we ought to presume that people in a persistent vegetative state would choose not to have their existence maintained by artificial nutrition and hydration. I do suggest that, even though the patient did not or could not clearly and convincingly evidence any views on the subject, the patient's family, absent any suggestion of improper motives, should be able to secure court approval to have life support terminated where the family believes that would be what the patient would choose if able to express a choice.

The majority holds that Judge Fader was correct in ruling that Ronald's gastrostomy tube should not be removed. The majority's sole consideration was that Ronald had never clearly and convincingly evidenced his views. I submit that Judge Fader was correct in ruling that Ronald's gastrostomy tube should not be removed because 1) Ronald had never clearly evidenced his views on the subject and 2) the two family members closest to him differed in their sincere beliefs as to what Ronald would have wanted. Therefore, Judge Fader could conclude there was no clear and convincing evidence as to what Ronald would have wanted regarding removal of the gastrostomy tube.

III. COURT INTERVENTION IN THE DECISION TO TERMINATE LIFE SUPPORT

This is a guardianship case. Pursuant to Maryland Code (1974, 1991 Repl. Vol.), Estates and Trusts Art., § 13-708(c), where there is a guardianship the court must authorize withdrawing medical procedures which would involve a substantial risk to the life of the disabled person. The majority appropriately points out:

"We emphasize that this case does not deal with a terminally ill patient[] who has neither a living will nor a durable power of attorney, who has no guardian, and whose family and health care providers are in agreement about the use or discontinuance of life-sustaining measures." (Footnote added).

329 Md. at 204 n. 4, 618 A.2d at 752 n. 4.

Where an incompetent patient is in a persistent vegetative state or is terminally ill and there is no designated guardian, then those closest to the patient, if unanimous, should be able to make the decision to terminate life support without judicial intervention. The courts are less suited than the patient's loved ones, acting with concurrence of the patient's physicians, to make these decisions. Most authorities agree that there is no need for judicial approval if there is a unanimous decision by those closest to the patient and the patient's health care providers that life support should be terminated. See, e.g., State Justice Institute, Guidelines for State Court Decision Making in Life-Sustaining Medical Treatment Cases Guideline 3, at 36-37 (2d ed. 1992) (trial court should decline jurisdiction unless it finds parties are not in agreement as to patient's actual or probable wishes); American Bar Association, Standards Relating To Trial Courts § 2.73.5, at 122-23 (1992) ("Disputes regarding a decision to forgo, continue, or withdraw life-sustaining medical treatment (LSMT) preferably should be resolved without court involvement," and the commentary to that standard indicates "[m]ost LSMT decisions are made by the patient or the patient's family and the health care provider without recourse to the courts."); M. Yuen, Comment, Letting Daddy Die: Adopting New Standards for Surrogate Decisionmaking, 39 UCLA L.Rev. 581, 600 (1992) ("Although several courts initially suggested that the judicial system was the appropriate forum to decide whether life-sustaining treatment could be withdrawn from an incompetent patient, courts have more recently declined to require judicial intervention as a prerequisite to [the family and attending physicians] making such decisions." (Footnote omitted)); K. Opperman, Note, Termination of Life-Sustaining Treatment: Who and How to Decide?, 33 N YL.Sch.L.Rev. 469, 479 (1988) ("Most treatment decisions for the incompetent patient are highly private decisions made by family and physicians who follow the termination of life-sustaining treatment guidelines of the institution where they practice. Logically, if all parties are acting in good faith, this is where treatment decisions should remain." (Footnotes omitted.)); see also Conservatorship of Morrison, 206 Cal.App.3d 304, 312, 523 Cal.Rptr. 530, 535 (1988) ("Judicial intervention in `right-to-die' cases should be minimal. . . . [C]ourts should intervene only if there is disagreement among the conservator and other interested parties and they have exhausted all nonjudicial efforts to resolve the dispute." (Emphasis in original)); Conservatorship of Drabick, 200 Cal.App.3d 185, 198, 245 Cal.Rptr. 840, 847 ("Patients make their own treatment decisions with the advice of their physicians. Family members, and sometimes other persons, participate when the patients cannot. Courts, on the other hand, become involved only when . . . there are disagreements."), cert. denied, 488 U.S. 958, 109 S.Ct. 399, 102 L.Ed.2d 387 (1988); In re L.H.R., 253 Ga. 439, 321 S.E.2d 716, 722-23 (1984) (hospital was required to remove life supports from infant in vegetative state per wishes of parent and guardian ad litem); Matter of Lawrance, 579 N.E.2d 32, 41-43 (Ind. 1991) (Parents were permitted, without court approval, to withdraw nutrition and hydration from a never-competent patient in a persistent vegetative state. The court stressed that judicial intervention is not appropriate when physicians and family members are in agreement, and noted that medical ethics and professional regulations provide safeguards against any abuse.); Matter of Jobes, 108 N.J. 394, 529 A.2d 434, 451 ("If a disagreement arises among the patient, family, guardian, or doctors, or if there is evidence of improper motives or malpractice, judicial intervention will be required. We expect, however, that disagreements will be rare and that intervention seldom will be necessary."), stay denied, 483 U.S. 1036, 108 S.Ct. 6, 97 L.Ed.2d 796 (1987). Jobes cites surveys that strongly support the desirability of family members making medical decisions for incompetent persons. It concludes that "[e]very recent survey that we have found indicates that society believes that a patient's family members should function as his or her surrogate decisionmakers." Jobes, 529 A.2d at 446 n. 11.

There is, of course, the danger that uncaring selfish family members will be motivated by a desire to get rid of incompetent relatives who are unwanted and burdensome. The safeguard in this situation will be that health care providers probably will not concur and should require court approval if they believe the family is not really acting in good faith and in accord with the patient's probable views. In addition, Maryland statutes require all hospitals to have Patient Care Advisory Committees, sometimes called "Ethics Committees." Md. Code (1982, 1990 Repl. Vol., 1992 Cum. Supp.), Health-General Art., §§ 19-370 to 19-374. The committees have, at a minimum, one physician and one nurse, neither of whom is directly involved with the patient's care, as well as one administrator and one social worker. These committees could review a family's request to withdraw life-sustaining medical treatments for a patient if there is any question about whether the request is appropriate or made in bad faith.

As long as there is no guardian appointed, the great weight of authority holds that there is no need for judicial approval for decisions to terminate life support of an incompetent patient who is terminally ill or in a persistent vegetative state when the family and the health care providers are in agreement on the decision. The obvious reason for permitting those closest to the patient to make this decision is that they are in the best position to determine what the patient would have chosen if the patient were able to make the choice. Since the unanimous opinion of those closest to the patient is almost universally accepted as the basis for a decision to terminate an incompetent patient's treatment when there is no guardian, the same criteria should be used by the court as a basis for a decision to terminate an incompetent patient's treatment where there is a guardian.

IV. SURROGATE JUDGMENT

There should be a hierarchy in the evidence which would clearly and convincingly justify withdrawal of life support: 1) a living will or a durable power of attorney delegating the decision; 2) statements of the patient to other people concerning the patient's views about life support; 3) the opinions of spouses, parents, siblings, other family members, and very close friends as to what the patient's choice would be. These people would be in the best position to assess the patient's views; in fact, these people would probably have molded, shaped, or influenced the patient's views. Any one of the above three types of evidence could constitute clear and convincing evidence. There is also a fourth category which would include the patient's attitude toward medical treatment, ethical, religious, and moral views, life goals, etc. I rather doubt that evidence in the fourth category could alone constitute clear and convincing proof of a patient's choice, but it could support one of the other three.

The majority discusses at some length the type of evidence which could be used to determine whether an incompetent patient had clearly and convincingly evidenced his or her views that treatment should be withdrawn. The kinds of evidence the majority suggests a court might use could include the patient's philosophical, religious, and moral views, life goals and values, attitude toward medical treatment, etc. As indicated, these factors are helpful, but it seems doubtful that, in the absence of express statements by the patient, many judges would hold that a patient's views, attitudes, and goals alone could clearly and convincingly establish the patient's choice about terminating life support. The majority fails to mention what I believe is the most probative and compelling evidence other than express statements by the patient. That evidence is the opinions of those closest to the patient about what the patient would have chosen under the present circumstances.

Ordinarily courts are reluctant to receive opinions on a factual issue; however, the inquiry at issue is not factual. It is an attempt to predict a choice that cannot be made. Ultimately, the decision will turn on the court's own opinion of what the incompetent patient would have chosen if able to choose. The beliefs and opinions of close family members should be of substantial assistance to the court. It is generally recognized that lay opinions ought to be admitted if they would aid the trier of fact. See J.W. Strong et al., McCormick on Evidence § 11 (4th ed. 1992). In analogous situations, we allow close family members to give lay witness opinions concerning a person's mental capacity to make a valid will or contract. See 6 L. McLain, Maryland Evidence § 701.3 (1987). Close family members may never remember all the conversations they had with the patient that would be relevant to predicting the patient's choice. They can, however, remember general impressions about the patient's attitudes and beliefs, as well as enough specific information to enable the court to assess the validity of their opinions. If the ultimate determination is to be an opinion about what the incompetent patient would have chosen, a judge who never knew the patient should be guided by the opinions of the patient's loved ones who best knew the patient.

Absent an express prior decision by the now incompetent patient, there should be a surrogate effort to determine and carry out the choice this patient would have made if able to make the choice. Even with infants and people who have never been competent, decisions about what they would have chosen, if competent, can be made based on the opinions of parents and other close family members. It is reasonable to assume that an infant or incompetent child, if capable of rendering a decision, would reflect the values and views of parents and close family members. These people, unless their motives are suspect, ought to be able, as surrogate decision makers, to opine about what decision the patient would make if able to make that decision.

Many courts have held that the decision to terminate life support systems should be based on the opinions of family members, as to what the patient would have chosen. For instance, in Matter of Spring, 380 Mass. 629, 405 N.E.2d 115 (1980), the Supreme Court of Massachusetts approved an order terminating life support for a seventy-nine year old senile incompetent patient with kidney disease. There was no evidence that the patient had, while competent, expressed any views about withdrawal of life support treatment, but the court accepted the opinions of the patient's wife and son that, if competent, the patient would want treatment withdrawn. The court stated that "[t]he wife and son had only the best interests of the ward at heart, and that they were best informed as to his likely attitude." Id., 405 N.E.2d at 122; see also John F. Kennedy Memorial Hosp. v. Bludworth, 452 So.2d 921, 926 (Fla. 1984) ("close family members or legal guardians substitute their judgment for what they believe the terminally ill incompetent persons, if competent, would have done under these circumstances").

In Matter of Jobes, 108 N.J. 394, 529 A.2d 434 (1987), the Supreme Court of New Jersey approved what I would call surrogate judgment, which it described as follows:

"This approach is intended to ensure that the surrogate decisionmaker effectuates as much as possible the decision that the incompetent patient would make if he or she were competent. Under the substituted judgment doctrine, where an incompetent's wishes are not clearly expressed, a surrogate decisionmaker considers the patient's personal value system for guidance. The surrogate considers the patient's prior statements about and reactions to medical issues, and all the facets of the patient's personality that the surrogate is familiar with — with, of course, particular reference to his or her relevant philosophical, theological, and ethical values — in order to extrapolate what course of medical treatment the patient would choose.

* * * * * *

Family members are best qualified to make substituted judgments for incompetent patients not only because of their peculiar grasp of the patient's approach to life, but also because of their special bonds with him or her." (Footnotes omitted).

Id., 529 A.2d at 444-45.

Even where the patient has never been competent, courts have held that a determination can still be made, usually relying on the opinions of the patient's family, as to what the patient probably would have chosen. For example, the court in Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 431-32 (1977), determined that where a patient had been severely retarded his entire life, the court could still determine that the patient would choose not to undergo potentially life saving chemotherapy. Courts have also permitted parents to speak on behalf of their infant children, who have never had the opportunity to develop or express their own views. See In re L.H.R., 253 Ga. 439, 321 S.E.2d at 722 (Patient was an infant in a chronic vegetative state. Court held that parents could make the decision to terminate life support and stated: "The right of the parent to speak for the minor child is so imbedded in our tradition and common law that it has been suggested that the constitution requires that the state respect the parent's decision in some areas."); Guardianship of Barry, 445 So.2d 365, 371 (Fla.App. 1984) (Parents petitioned court for approval to terminate life support system for their 10-month-old child who was terminally ill and in a chronic permanent vegetative coma. Court held parents may, even without court approval, make the decision, based on their substituted judgment, to remove child's life support system.); Care Protection of Beth, 412 Mass. 188, 587 N.E.2d 1377 (1992) (1992) (upheld finding that infant in an irreversible coma would choose to refuse resuscitation).

The bottom line is this: Does the surrogate decision maker believe and have an adequate basis for believing that this patient, if suddenly and miraculously given the ability to express a preference, would choose to terminate life support? The surrogate decision maker should be the patient's family or loved ones who know the patient best, subject to court ratification in a guardianship case or court resolution where there is a dispute among close family members. Where the patient has not clearly and convincingly evidenced, or was unable to evidence, any view, courts should consider the good faith opinions of those closest to the patient about what the patient would have chosen.

There is obvious and well-founded criticism for using surrogate judgment in trying to determine what a person who is incapable of making a decision would have decided if capable of making the decision. See, e.g., L. Harmon, Falling Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment, 100 Yale L.J. 1 (1990). I still believe it is better to attempt to replicate the decision the incompetent would have made, if able to decide, by using whatever information we may glean about the incompetent's thought processes and by giving great deference to the opinions of those closest to the incompetent.

The alternative approach suggested by the majority is that the legislature develop objective standards and criteria as to which patients will and which patients will not be continued on life support. Admittedly family members of an incompetent patient who has never been competent may have minimal insight into or means of identifying the patient's wishes and desires, but their insight is still better and more individualized than purely objective criteria established by a legislature or a court. It goes without saying that there is probably wide divergence of opinion among legislators and judges about when it would be more desirable to die than to live. If a decision is to be made, then the patient's probable decision can best be determined by those closest to the patient rather than by a legislature or a judge. Professor Nancy K. Rhoden in her article Litigating Life and Death, 102 Harv.L.Rev. 375 (1988), stated the reasons why the decision to terminate life support should be made by the family.

"Not surprisingly, polls repeatedly show that patients, and members of society in general, believe that family members should function as surrogate decisionmakers. In short, there is a deep-rooted and almost instinctual sense that a close family member should make such decisions. Most readers will understand this if they consider whom they would want to make treatment decisions for themselves — their families or physicians and hospital administrators.

Moreover, because of the nature of the family as an association, its members are in the best position to reproduce the preferences of an incompetent patient. Numerous courts and commentators have emphasized that family members are best qualified to make these decisions, because of their knowledge of the patient's likely preferences and their special bonds with the patient. Not only are family members most likely to be privy to any relevant statements that patients have made on topics of treatment or its termination, but they also have longstanding knowledge of the patient's character traits. Although evidence of character traits may seem inconclusive to third parties, closely related persons may, quite legitimately, `just know' what the patient would want in a way that transcends purely logical evidence. Longstanding knowledge, love, and intimacy make family members the best candidates for implementing the patient's probable wishes and upholding her values." (Footnotes omitted).

Id. at 437-38.

Another reason why a patient's loved ones are best able to make the decision that the incompetent patient would want made is that the choice most people would want made, should they become incompetent, would be whatever their loved ones would choose on their behalf. For example, a poll published in the National Law Journal found:

"An overwhelming 88 percent of Americans say the family should decide whether to end artificial life support when an individual is in a coma without hope of recovery and has left no instructions on personal wishes. Only 8 percent said doctors should make the decision; 1 percent said the courts should decide, and no one selected the state."

M. Coyle, How Americans View High Court, Nat'l L.J., Feb. 26, 1990, at 1, 36 (citing National Law Journal/Lexis poll of over 800 people which had a statistical margin of error of plus or minus 3.4%).

The decision to terminate life support should ideally be the patient's. If the patient has never made and is not capable of making the decision, there is no easy choice or good alternative, but the better of a poor choice of alternatives seems to be using the legal fiction of attempting to determine what this patient would have desired, relying primarily on the opinions of the patient's loved ones who know the patient best. This is preferable to using objective criteria set by a court or legislature or using only the opinion of a judge who never knew the patient whose life is at issue.

V. LEGISLATION

The majority makes the fitting suggestion that legislative guidelines would be helpful in this difficult area. I do not, however, subscribe to the passive euthanasia implication of the majority's statement that "a legislative body is better equipped to determine, within constitutional limits, whether some lives are not worth living and, if so, how to determine which are the lives that are not worth living." 329 Md. at 219, 618 A.2d at 759-60. I submit an incompetent patient's family rather than the legislature is better able to determine if this patient would rather live or die. If, as the majority suggests, the legislature develops objective criteria, rather than using the opinions of the family, as to whether a patient should live or die, we may have the appalling specter of a patient meeting the legislature's criteria and being taken off life support despite the family's unanimous belief that the patient, though never expressing a view, would have chosen to continue to live. It is doubtful that the legislature is going to accept eagerly the majority's challenge to determine "which are the lives that are not worth living." The need to accommodate diverse religious and ethical views will make any legislative decision extremely difficult. In this era of legislative concern over rising health care costs, any legislative decision might be criticized as either reducing health care costs by sacrificing lives or causing an unwarranted increase in health care costs by unnecessarily prolonging lives. It will probably prove to be almost impossible for the legislature to establish categories of which ill or dying patients should have their lives terminated. There are also troubling implications in any legislative decision. If the patient's family makes an imperfect decision, then one patient may be harmed, but if the legislature establishes imperfect guidelines, then large numbers of patients and/or their families may be harmed. Meanwhile, unless and until the legislature accepts the majority's delegation of decision-making responsibility, incompetent wards in a persistent vegetative state, who have not, while competent, clearly and convincingly evidenced their views, cannot get court approval to terminate life support. The majority has made a decision by not making a decision and may have left a significant group of incompetent patients in limbo.

Even absent legislative guidance I believe the courts have a responsibility, which they should not abdicate, to establish a procedure whereby incompetent patients, who have failed to or have never been able to clearly and convincingly evidence their views on the subject, may still, in appropriate cases, get court authorization to die with dignity. The majority acknowledges "[p]atients who are unable to exercise the right to refuse treatment for themselves, nevertheless still enjoy the right." 329 Md. at 211, 618 A.2d at 756. They then deny court implementation of that right to all incompetent patients except those who, while competent, evidenced their views in a manner that clearly and convincingly proves to a judge that the patient would choose to terminate life support.

It is conceivable that Ronald will continue to physically deteriorate to the degree that Mr. Mack might ultimately join Deanna in the view that, based on Ronald's further deteriorated condition, Ronald would no longer wish to have his life maintained by the gastrostomy tube. Under the majority opinion, because Ronald did not, while competent, clearly and convincingly evidence his views about the termination of life support, his life support system can never be terminated regardless of whether Ronald's family sometime in the future concludes unanimously that, if competent, this is what Ronald now would have wanted.

Even where an incompetent patient has not clearly and convincingly evidenced his or her views on the issue, courts ought to be able to decide, using the beliefs and opinions of those closest to the patient, what the patient's decision would be. We should not abdicate the decision-making responsibility and delegate to the legislature the responsibility for determining how courts should decide these cases.

The majority opinion recognizes that our primary goal must be to ascertain what the patient would prefer. Does the majority really believe that all people in a persistent vegetative state who have not clearly and convincingly evidenced their views about life support would prefer to remain on artificial life support indefinitely? Does the majority also believe that incompetent patients who have not sufficiently evidenced their views about life support would prefer that the legislature or a judge, rather than their loved ones, decide under what circumstances their artificial life support should be terminated?

For the reasons stated above, I would affirm the trial court.