Searching for Fairness: Examining the Texas Advance Directives Act in Light of the Clear and Convincing Evidence Standard

I. Introduction

It looks like we’re stuck with a very flawed law.^[1]

On June 18, 1999, then-Governor George W. Bush signed the Texas Advance Directives Act (TADA) into law.^[2] This new statute was the end of a process that began in 1993 to develop procedures to deal with medical futility disputes.^[3] At the time, this statute was seen as a “watershed compromise” between disparate medical, pro-life, and civil liberty groups, including the Texas Medical Association and Texas Right to Life.^[4] However, the alliance did not last long as one section of the statute became a battleground in the fight between patient wishes and hospital ethics committees. Section 166.046 of TADA mandates what happens when a patient’s physician does not want to abide by a patient’s advance directive or the direct wishes of the patient or patient’s family.^[5] Typically, this occurs when the physician wants to deny a request for life-sustaining treatment.^[6] In these cases, the TADA procedure allows an ethics committee and the hospital to review the physician’s decision, and if the committee agrees with the physician, the physician and hospital can stop the treatment without any possibility of liability, as long as the patient’s representative or family is given ten days before treatment is stopped in which to find a new facility to treat the patient, if desired.^[7] There is no standard imposed on the physician and ethics committee in making this decision.^[8] Some hail the statutory procedure involving the disputed provision as a model for other states to follow,^[9] but now, some who supported the statute as a standard to follow are seeing flaws within the procedure.^[10] Due to the power given to the physician and hospital by Section 166.046 of TADA and the lack of evidentiary standard inherent in the statute, courts need to find a way to handle disputes regarding it. This Comment proposes a new approach to use when such disputes come before Texas courts: to place the burden on those wishing to withdraw life-sustaining treatment and to apply the clear and convincing evidence standard. The clear and convincing evidence standard strikes an appropriate balance between the parties in these cases and provides a way for courts to handle disputes involving the flawed legislation.

This Comment examines Section 166.046 of TADA as it relates to the case of Christopher Dunn, a patient whose wishes for treatment went against the opinion of his physician and the hospital he was in, and then offers a possible way for courts, using the clear and convincing evidence standard, to handle these disputes when patients and families seek relief because of the implementation of the TADA procedure. Part II surveys TADA’s formation and how it is used in Texas, along with the legislative attempts to change or repeal the statute. This Part continues with a discussion of the constitutional arguments that have been made against the statute. In Part III, I introduce Christopher Dunn, a patient whose physician implemented the procedure defined in Section 166.046 (the 166.046 process) to stop his life-sustaining treatment. His case is the first in which the constitutional arguments against TADA made it to court and the first case in which a family member continued the litigation after the patient’s death. Part IV recommends a novel way for courts to address claims such as Dunn’s that come before them regarding TADA: using the clear and convincing evidence standard. Unfortunately, most patients in these situations pass away before the trial process can be completed, so this Section also includes a discussion of the mootness doctrine and how such cases should fit within an exception to mootness. Part V concludes that real relief for patients, such as Dunn, and their families ultimately will come through Section 166.046 of TADA being repealed or amended to take away physicians’ and hospitals’ power to determine who lives and who dies; however, until that time comes, the clear and convincing evidence standard may help to make sure the statute is applied more fairly in these life or death situations.

II. The Texas Advance Directives Act

This statute is replete with procedural problems.^[11]

A. The Process

The Texas Advance Directives Act (TADA) stipulates the statutory procedures for physicians and health care providers to evaluate and implement advance directives.^[12] Advance directives give people the opportunity to let their loved ones and doctors know their decisions about end-of-life care in advance of catastrophic illness or injury to avoid any confusion at the time care is needed.^[13] For the purposes of this Comment, I am concerned with the procedure that physicians and hospitals follow when there is a dispute concerning the continuation of life-sustaining treatment whether there is an advance directive in place or not.^[14] Within this statutory procedure, “[i]f an attending physician refuses to honor a patient’s advance directive or a health care or treatment decision made by or on behalf of a patient, the physician’s refusal shall be reviewed by an ethics or medical committee.”^[15] Whoever is responsible for the health care decisions of the patient “may be given a written description of the ethics or medical committee review process”^[16] and is entitled to be “informed of the committee review process not less than 48 hours before the meeting.”^[17] This representative can “attend the meeting;”^[18] “receive a written explanation of the decision reached during the review process;”^[19] and receive a copy of the patient’s pertinent medical records.^[20]

The statute then discusses the procedure that the patient, patient’s representative, or family can take when the continuation of life-sustaining treatment is desired and the medical committee review process allows for the discontinuation of treatment.^[21] This procedure calls for the physician to “make a reasonable effort to transfer the patient to a physician who is willing to comply with the directive.”^[22] Because another physician at the same hospital will rarely take a patient in this situation, typically, the patient representative instead tries to get the patient into another facility.^[23] In order to facilitate such a transfer, the statute says that when the patient representative is given notice of the ethics committee review process, the representative also must be given “a copy of the registry list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer or to assist in locating a provider willing to accept transfer.”^[24] However, as of December 2016, this list only contains three health care providers, four law firms, and two advocacy groups.^[25] Moreover, there is no obligation on the part of the providers listed here to accept this type of transfer.^[26] In light of these facts, the harsh reality for patients is that the seemingly-beneficial transfer provisions in TADA are merely superficial assurances that provide false hope. The registry’s lack of resources and willing providers essentially renders this provision irrelevant.

The statute allows the patient or representative to ask the court for an extension of the time to find an alternative facility; however, the court only extends this time if it “finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient’s directive will be found if the time extension is granted.”^[27] When the patient representative files such a lawsuit, it is usually “initiated by the filing of an original petition with a request for a temporary restraining order preventing discontinuation of treatment.”^[28] Then, there will be an oral hearing for a temporary injunction within fourteen days, and the restraining order possibly may be extended another fourteen days with “good cause shown.”^[29] These court-allowed extensions are difficult to get because of the reasonable expectation standard found in the statute.^[30] However, as I will show in the Dunn case, such an injunction is possible to obtain.^[31]

Physicians and hospitals who refuse to honor a patient’s advance directive or a patient’s wishes to continue life-sustaining treatment are covered from liability under the provisions of the statute as long as the procedures of the statute are followed.

A physician, health professional acting under the direction of a physician, or health care facility is not civilly or criminally liable or subject to review or disciplinary action by the person’s appropriate licensing board if the person has complied with the procedures outlined in Section 166.046.^[32]

This provision provides “safe harbor” from civil or criminal liability when a doctor or hospital refuses to continue life-sustaining treatment and was a chief legislative goal for some in the medical community in getting the statute passed.^[33]

B. Legislative History

TADA was signed into law by Governor George W. Bush in 1999 as a compromise between the medical community and pro-life and disability rights groups.^[34] The consensus at the time of passage did not last long because pro-life and disability rights groups grew concerned with how doctors and hospitals implemented the statute’s procedures.^[35] It became clear that the statute provided doctors with absolute immunity yet provided only “very weak procedural protections for patients.”^[36]

Since passage, the Texas legislature has considered over twenty-five bills to amend the statute but has enacted only two.^[37] The first enacted amendment was passed in 2003 and, among other changes regarding minors and former patients, it allowed for the creation of written disclosures including the creation of the health care provider and referral group registry.^[38] The most recent amendment occurred in 2015: H.B. 3074 excludes artificially administered nutrition and hydration from the scope of TADA unless the nutrition and hydration would cause greater harm or be ineffective.^[39] Many of the amendments that did not pass included provisions that increased the transfer period or did away with it altogether, which would have required the hospital to continue treatment until another facility was found.^[40] The lack of consensus to get the disputed statute amended displays the tension between “those who want to improve the fairness of TADA and those who are opposed to the very concept that hospitals and physicians should be authorized to stop life-sustaining treatment without consent.”^[41] Therefore, it is unlikely that the legislature will agree to change or repeal Section 166.046 of TADA anytime soon.

C. Due Process Argument

Compelling arguments have been made during the years since TADA was signed into law that TADA violates due process protections,^[42] both substantive^[43] and procedural.^[44] In fact, it has been argued that the procedure in TADA offers less protection to a patient whose life-sustaining treatment may be removed than other statutes in Texas provide to tenants facing eviction, to workers having wages garnished, and to car owners facing repossession of their cars.^[45] This Section summarizes existing due process arguments to demonstrate the failings of TADA’s due process protections.

Valid due process analysis requires state action,^[46] but those making the due process arguments against TADA show that hospital ethics committees acting to remove life-sustaining treatment can be considered state actors^[47] or frame the argument as one of “fundamental fairness” if private hospital ethics committees cannot be seen as state actors.^[48] For the most part, the due process arguments regarding TADA are procedural, but there is a substantive argument to be made. Typically, substantive due process protection issues arising from the Fourteenth Amendment have their emphasis on the guarantee of liberty, not of life.^[49] However, the TADA procedure can be seen as interfering “with a constitutionally protected right to be free of state-sanctioned acts undertaken with an intent to end a person’s life.”^[50] Regarding this right, the Supreme Court has stated “that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment.”^[51] The substantive due process argument hinges on whether there is a constitutional right to self-preservation; if so, TADA can be seen to infringe on this right by preventing patients from getting life-sustaining treatment and then offering immunity to the physicians who deny this care.

Procedural due process is most needed when interests such as “life and death” are at stake^[52] and when there is a high “risk of error.”^[53] Both of these principles are at work in the TADA procedure because the statute deals with the removal of life-sustaining treatment and because medical judgments are not without mistakes that can have grave consequences.^[54] The procedural due process arguments regarding TADA include the following: no neutral decision-maker, no appellate review of decisions using the TADA procedure, and inadequate notice.^[55]

First, TADA does not require a neutral decision-maker when the decision comes before the ethics committee,^[56] and “due process requires a hearing to be held ‘at a meaningful time and in a meaningful manner’ when a person is singled out for deprivation of a protected interest.”^[57] These committees are not impartial because they are made up entirely of individuals from the hospital that is making the treatment decision in conflict with the patient’s wishes.^[58] The hospital’s interests inevitably come before the patient’s interests. In fact, such conflicts of interest are seen when there are questions of money and when the withdrawal of treatment occurs after insurance or Medicaid benefits run out.^[59]

Second, the procedure does not require appellate review.^[60] Because the statute provides that the hospital ethics committee has the final say on whether treatment will be continued,^[61] such decisions are unreviewable.^[62] In fact, the unreviewable nature of TADA and the immunity given to physicians and hospitals in their decision-making powers regarding TADA were both parts of the legislative purpose in drafting the statute.^[63]

Third, TADA does not require any specific standard for its allowance to remove life-sustaining treatment, so patients are given no real notice as to why life-sustaining treatment is being denied.^[64] The patient or representative receives some notice about the physician refusing treatment and about when the committee will meet but is not given any basis or understanding as to why the treatment will be withdrawn.^[65] Within the lack of notice is also the short time period, 48 hours, given to patients and their representatives to prepare for the ethics committee meeting.^[66] This short amount of time is not enough to prepare for the committee meeting in which decisions regarding a patient’s life or death are being made.^[67]

These due process concerns exemplify the need for legislative change or for the courts to step in and provide some relief to patients and their families when disputes arise regarding the TADA procedure. Even though TADA rests its decision-making process exclusively in the physicians and hospitals using its protections to allow them to withdraw life-sustaining treatment, there is a role for the courts to play in protecting a patient facing the withdrawal of treatment.^[68] However, the role of the courts in TADA disputes is ill-defined, as shown in the next Part discussing Christopher Dunn’s case. Then, later, I propose a way in which courts can act to give relief until the legislature amends the statute.

III. Christopher Dunn

Do you want to stay alive?^[69]

A. TADA Procedure Imposed

David Christopher Dunn was admitted to Houston Methodist Hospital in October of 2015 with a mass on his pancreas.^[70] The mass grew, affecting organs around it, and he was eventually placed on a breathing tube.^[71] The hospital began the 166.046 process in November, and Dunn’s mother, Evelyn Kelly, who had medical power of attorney for him,^[72] attended the ethics committee meeting and expressed her hope that treatment would continue.^[73] The committee disagreed with Ms. Kelly and declared that the hospital would discontinue Dunn’s life-sustaining treatment on November 24, 2015.^[74] Ms. Kelly sought help from Texas Right to Life and enlisted attorneys to file a restraining order to preserve the status quo of his treatment.^[75] The court granted the motion and issued a temporary restraining order to preserve Dunn’s treatment.^[76] Dunn died from his illness on December 23, 2015, about a month after Methodist Hospital would have discontinued his life-sustaining treatment had the restraining order not been in place.^[77]

The hospital maintained that Dunn was “largely unresponsive” during his time there, leading to its decision to discontinue treatment.^[78] However, on December 2, 2015, he was conscious and able to nod and give nonverbal affirmation when asked by his mother and his attorneys whether he wanted to live.^[79] The video of this request and Dunn’s subsequent affirmation was posted and shared through social media, leading to a media campaign for his cause.^[80] His case stands in stark contrast to the patient in a vegetative state who is typically imagined when TADA is discussed. Dunn’s case demonstrates the lack of a standard when applying the 166.046 process: through TADA, doctors and hospitals are able to withhold life-sustaining treatment even if the patient is conscious.

B. Declaratory Judgment

Other patients or their representatives have filed similar injunctive requests to continue treatment;^[81] Dunn’s case, however, is unique because, in addition to the request for a restraining order to preserve his life-sustaining treatment, his attorneys also petitioned the court for a declaratory judgment that the 166.046 process violated Dunn’s due process.^[82] The petition asked for this judgment and presented the argument that the statute violates procedural^[83] and substantive due process,^[84] along with Dunn’s civil rights.^[85] The arguments raised in the pleading echo the due process issues raised over and over regarding TADA such as lack of notice and a lack of an impartial decision-maker.^[86] The due process and civil rights claims survived Dunn’s death as his mother decided to go forward with the suit.^[87] Dunn’s suit that began as a temporary restraining order to continue his treatment became a means to challenge the constitutionality of the statute. There was no life to save at this point, but there was an opportunity for a district court to make a declaratory judgment regarding the violation of Dunn’s constitutional rights.^[88]

Houston Methodist’s motion to dismiss Kelly’s suit centered on two arguments: a procedural argument that Kelly did not timely file an expert report to support a Health Care Liability Claim^[89] and a mootness argument, saying that because Dunn died there was no longer a live controversy.^[90] Kelly’s response to the first argument reiterated the due process and civil rights claims and stated that the petition was neither a personal injury claim nor any such claim of a departure from medical standards.^[91] Her case was a constitutional claim, not a medical malpractice case, so there was no need to produce an expert report.^[92] Regarding the mootness argument, Kelly countered that the application of TADA is capable of repetition yet evades review.^[93] The 166.046 process is capable of repetition because cases will continue to crop up in which physicians will advocate for the removal of life-sustaining treatment in Texas hospitals, and it also evades review because of the short notice of the ethics committee meeting followed by the ten-day period before treatment is withdrawn.^[94] The response points out that the statutory answer period for a lawsuit is at least twenty days after the date of service, making it “practically impossible for a patient bound to life sustaining treatment . . . to retain counsel and complete a lawsuit in less than two weeks.”^[95]

C. Motion for Summary Judgment

Kelly’s petition never got a court date, and her attorneys filed a Motion for Summary Judgment to rule Section 166.046 unconstitutional.^[96] A judge finally heard the arguments on September 22, 2017, making it the first case that challenged the constitutionality of TADA to be heard in court.^[97] Kelly’s case had the support of Ken Paxton, the Texas Attorney General, who filed an amicus brief in her favor.^[98] Typically, the position of the attorney general is to support the laws of the state, but the brief challenges the constitutionality of the statute and cites the same due process concerns that have been made about TADA previously: “Section 166.046 of the Texas Health and Safety Code allows the government to deny an individual his or her life and does so without sufficient process of law. That violates due process and cannot stand.”^[99]

Even with the support of the Attorney General, Harris County District Judge Bill Burke rejected Kelly’s lawsuit.^[100] Judge Burke did not want to declare the statute unconstitutional and thought the legislature, not the courts, was the right forum to determine if the statute adequately protects patients.^[101] In addition, he mentioned that the suit was moot due to Dunn’s death.^[102] An appeal has been filed,^[103] but for now the statute still stands awaiting the next patient, like Dunn, who will face the removal of life-sustaining care if his or her physician thinks the care is futile, despite the wishes of the family, representative, or even the conscious patient.

IV. Clear and Convincing Evidence Standard

An erroneous decision to withdraw life-sustaining treatment . . . is not susceptible to correction.^[104]

Because the courts in Texas are reluctant to declare TADA unconstitutional^[105] and legislation to change it keeps stalling,^[106] there needs to be another way to address cases such as Christopher Dunn’s that will keep coming up in the courts due to the procedural problems inherent in the statute.^[107] Applying the clear and convincing evidence standard in lieu of the existing method, which offers no standard for an ethics committee, is a way that Texas courts can avoid constitutional turmoil^[108] and provide some relief to families in these difficult situations. The lack of any evidentiary burden when the ethics committees make their decisions, decisions that are immune from review and require no meaningful standard of care on the side of the physician or hospital,^[109] results in an inherent unfairness in TADA that leads to the constitutional issues raised in Dunn’s case.^[110]

Texas allows the clear and convincing standard to be used by courts in certain types of cases after the Texas Supreme Court first required it in State v. Addington.^[111] In Addington, the Texas Supreme Court declared that the higher evidentiary standard was needed in civil proceedings to commit people to mental health hospitals.^[112] After this decision, the standard has since been applied to other issues,^[113] such as constitutional rights involving the termination of the parent-child relationship,^[114] intent to make a gift, paternity under the Wrongful Death Act, and defamation.^[115] These disputes pale in comparison to discontinuing life-sustaining treatment, leading to death. Because the Texas courts allow this higher evidentiary standard when constitutional issues are at stake, as in the issues mentioned above, this higher standard of proof should be used to deal with the constitutional questions raised in TADA cases like Dunn’s.

As previously mentioned, TADA is unique in the authority it gives to physicians and ethics committees to make decisions regarding life-sustaining treatment.^[116] Other jurisdictions have statutes in place that give authority to certain people such as family members and court-appointed guardians to make the same treatment decisions that the Texas statute gives to hospitals.^[117] Case law from these states discusses the constitutionality of these statutes that address how surrogate decision-makers can decide to remove life-sustaining treatment. Unlike TADA, such cases from other states concern decisions between people to determine whether to remove treatment, not decisions made by the patient’s hospital. However, the arguments made in these cases still apply to Dunn’s case because the gravity of the situation surrounding the removal of life-sustaining treatment is the same regardless of who has the authority to make the decision.

The courts in the other jurisdictions use constitutional avoidance^[118] to keep from having to decide the constitutionality of the pertinent statutes and instead apply the clear and convincing evidence standard to their decisions for removing life-sustaining treatment.^[119] Cruzan v. Director, Missouri Dep’t of Health clarified the clear and convincing evidence standard regarding health care laws.^[120] In that case, the Supreme Court concluded “that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state.”^[121] Cruzan offers precedent for allowing the withdrawal of life-sustaining treatment, nutrition, and hydration, and the other cases discussed here argue for the continuance of treatment; however, the application of clear and convincing evidence in such decisions applies to either side of the decision. Cruzan is the only Supreme Court case to discuss these life-sustaining treatment issues, and the Court emphasizes that “[a]n erroneous decision to withdraw life-sustaining treatment . . . is not susceptible of correction.”^[122]

A. Cases Applying Clear and Convincing Evidence in Decisions to Continue Life-Sustaining Treatment

This Section examines three cases from other states in which courts demanded the clear and convincing evidence standard when faced with disputes concerning decisions to withdraw life-sustaining care. The heightened burden of proof is required for different facets of the cases, such as to show the patient is permanently unconscious and that it is in the best interest of the patient to remove life support;^[123] to show that healthcare decisions made by the state need to be made in the best interest of a child patient;^[124] or to show that the patient previously stated a desire to have life-sustaining treatment withheld.^[125] Even though the heightened evidentiary standard was used to determine different aspects of the cases, the results of using this standard both to avoid declaring a statute unconstitutional and to err on the side of “preserving life”^[126] are the same. After reviewing these cases, Dunn’s case can be examined in the light of the application of the clear and convincing evidence standard.

1. Woods v. Commonwealth

Here, the court considered the constitutionality of a statute defining the decision-making authority regarding a ward of the state.^[127] The dispute was between a judicially-appointed guardian and guardian ad litem.^[128] The guardian ad litem asserted that a Kentucky statute, KRS 311.631, was unconstitutional.^[129] The statute mandates the responsible parties authorized to make health-care decisions for adults who lack decisional capacity:

If an adult patient whose physician has determined that he or she does not have decisional capacity has not executed an advance directive, or to the extent the advance directive does not address a decision that must be made, any one (1) of the following responsible parties, in the following order of priority if no individual in a prior class is reasonably available, willing, and competent to act, shall be authorized to make health care decisions on behalf of the patient: (a) The judicially-appointed guardian of the patient, if the guardian has been appointed and if medical decisions are within the scope of the guardianship.^[130]

A judicially-appointed guardian was authorized for Mr. Woods, an intellectually-disabled ward of the state who suffered a heart attack after a severe asthma attack.^[131] Lack of oxygen led to “severe global encephalopathy,” which caused him to be in a state of permanent unconsciousness.^[132] He was given paralyzing drugs to control muscle spasms caused by short bursts of electrical activity in his brain.^[133] Woods’s doctors and judicially-appointed guardian petitioned the court to terminate his life-sustaining treatment.^[134] However, Woods’s guardian ad litem “appealed to the Fayette Circuit Court, asserting that KRS 311.631 is unconstitutional or, if constitutional, the judicially-appointed guardian must prove by clear and convincing evidence that withdrawing artificial life support is in the patient’s best interests . . . .”^[135]

Woods died of natural causes before the circuit court issued a judgment, which said mooted the case, according to the court.^[136] However, “[t]he Court of Appeals reversed and remanded, citing an exception to the mootness doctrine, applicable when the underlying dispute is ‘capable of repetition, yet evading review.’”^[137] Ultimately, the Kentucky Supreme Court ruled the statute is not unconstitutional.^[138] However, the court also ruled that even though the statute is constitutional:

If there is a disagreement, . . . the burden will be upon those seeking to withhold or withdraw life support from the patient to prove by clear and convincing evidence that the patient is permanently unconscious or in a persistent vegetative state, or that death is imminent, and that it would be in the best interest of the patient to withhold or withdraw life-prolonging treatment.^[139]

A lengthy dissent discusses, among other issues, that KRS 311.631 “establishes a potential abuse of patient’s rights because how can it be in the patient’s best interests to die?”^[140] The dissent mentioned multiple errors in the majority opinion, including the error of applying this statute to a person, such as Woods, who never had decisional capacity.^[141] Also, the dissent pointed out that prior case law in Kentucky maintained that the clear and convincing evidence standard should be applied to what the individual would wish to be done in the situation, and there was no evidence Woods had expressed any intent or preference regarding the withdrawal of treatment.^[142] Therefore, because there was no evidence that Woods had expressed such a desire, the decision to withdraw treatment should not have been allowed.^[143] In addition, Woods made some progress toward recovery when he was taken off of the paralyzing drugs and then regressed to the same unconscious state when those drugs were given to him again.^[144] Thus, Woods may not have actually reached the state of permanent unconsciousness that his physicians referred to when recommending the withdrawal of treatment.^[145] The dissent further discussed the conflict of interest for the Commonwealth to make these decisions about life-sustaining treatment because it was paying Woods’s medical bills: “It is distressing to note that it was only 24 days after the heart attack of Woods that the Commonwealth filed in district court seeking approval to terminate medical treatment.”^[146] This dissent shows that courts should consider all life valuable, including the life of a mentally-impaired ward of the state who has no family fighting for him.^[147]

Woods clearly demonstrates how the court, when faced with the prospect of declaring a statute unconstitutional, may rely on constitutional avoidance and use the clear and convincing evidence standard before withdrawing life-sustaining treatment. Like TADA, the Kentucky statute at the heart of this dispute does not specify any standard of proof when determining the severity of the unconscious state of an incompetent patient; however, the court seems very comfortable applying the clear and convincing evidence standard when deciding whether a patient is permanently unconscious because individual interests regarding life are at stake.^[148] As opposed to the Texas court in the Dunn case, the Kentucky Supreme Court in this case welcomes the opportunity to answer the question presented before it regarding Mr. Woods’s continued care, and it states that such cases present “the kind of question which has traditionally been left to the judiciary to resolve.”^[149]

2. Baby F. v. Oklahoma County District Court

In this Oklahoma case, the State wanted to place a “Do Not Resuscitate” (DNR) on Baby F., a ward of the court who was a “deprived” child.^[150] The child had severe health issues and required significant assistance from a ventilator.^[151] The State requested that Baby F.'s status be changed to DNR based on an Oklahoma statute regarding the authority of the Department of Human Services (DHS) to consent to medical care for children in its custody^[152]:

In no case shall the Department consent to a child’s abortion, sterilization, termination of life support or a “Do Not Resuscitate” order. The court may authorize the withdrawal of life-sustaining medical treatment or the denial of the administration of cardiopulmonary resuscitation on behalf of a child in the Department’s custody upon the written recommendation of a licensed physician, after notice to the parties and a hearing.^[153]

A trial court allowed the status change, and Baby F., through his attorneys, objected.^[154]

After Baby F.'s attorneys made their court filings, Baby F.‘s condition deteriorated.^[155] The trial court then returned Baby F. to his parents’ custody, which cancelled the need for the trial court’s permission to change the DNR status, and Baby F. died soon after.^[156] The Supreme Court of Oklahoma still decided to address the constitutionality of the Oklahoma statute giving DHS the authority to allow a DNR status for a child in the State’s care.^[157] Even though Baby F. died, the court did not dismiss the case because it fell within the recognized exceptions to the mootness doctrine, including “when the challenged event is capable of repetition, yet evading review.”^[158]

Baby F.'s attorneys asserted that the statute at the heart of the case “does not comport with the requirements of substantive due process because it permits a court to authorize a DNR order for a child in state custody without addressing what burden of proof applies and what findings the court must make.”^[159] Comparing Cruzan, the Supreme Court of Oklahoma said the State must “satisfy the clear and convincing evidence standard traditionally applied by this Court when important interests are at stake.”^[160] The court explained that the burden of proof is on the State to prove that such health care decisions are made in the best interests of the child; it then concluded that future trial court decisions “shall not authorize the withdrawal of life-sustaining medical treatment or the denial of the administration of cardiopulmonary resuscitation on behalf of a child in DHS custody without determining by clear and convincing evidence that doing so is in the best interest of the child.”^[161]

Here yet again, the court contemplates the high stakes involved in the interpretation of a statute dealing with the authorization of withdrawal of life-sustaining treatment.^[162] The court cites the need for the high evidentiary standard to determine what is in the best interest of the patient because of the high risk of error involved in withdrawing life-sustaining treatment.^[163] In fact, the court even addresses due process concerns inherent in the decision to remove life-sustaining treatment for a child in state custody and declares “clear and convincing evidence is the only Constitutionally acceptable standard to satisfy the requirements of due process.”^[164] As in the Woods case, the court here does not seem to be bothered by the constitutional question placed before it. The court is willing to see the due process inadequacies of the statute and creatively protect fundamental rights by using the clear and convincing evidence standard going forward when faced with a case such as this.^[165]

3. Conservatorship of Wendland

In this case out of California, a dispute arose between Mr. Wendland’s wife, who was his conservator, and his mother and sister regarding the removal of his feeding tube.^[166] A car accident left Mr. Wendland severely mentally and physically disabled, yet conscious.^[167] His wife wanted to remove his feeding tube because she said he did not want to live in such a condition, citing her authority as his conservator under California Probate Code Section 2355^[168]:

If the conservatee has been adjudicated to lack the capacity to make health care decisions, the conservator has the exclusive authority to make health care decisions for the conservatee that the conservator in good faith based on medical advice determines to be necessary. The conservator shall make health care decisions for the conservatee in accordance with the conservatee’s individual health care instructions, if any, and other wishes to the extent known to the conservator. Otherwise, the conservator shall make the decision in accordance with the conservator’s determination of the conservatee’s best interest.^[169]

Mr. Wendland’s mother and sister objected to having the feeding tube removed and argued “that section 2355 would be unconstitutional if construed to permit a conservator to end the life of a conscious conservatee based on a finding by the low preponderance of the evidence standard that the latter would not want to live.”^[170]

The Supreme Court of California ruled that the statute was not facially unconstitutional. Then, to avoid the possibility that the statute was unconstitutional as applied, the court construed the statute to require “clear and convincing evidence of a conscious conservatee’s wish to refuse life-sustaining treatment when the conservator relies on that asserted wish to justify withholding life-sustaining treatment.”^[171] The court pointed out that this evidence standard does not apply to most health care decisions made by conservators; the higher standard only applies to decisions to withdraw life-sustaining treatment from a conscious patient who has not previously left formal instructions to withdraw treatment.^[172] The court mentioned a conscious conservatee’s “fundamental rights” as requiring the higher standard of proof.^[173] Mr. Wendland also passed away while the case was being decided,^[174] and the court chose to continue with the case, citing the importance of determining moot issues “that are capable of repetition yet tend to evade review.”^[175]

As in the previous cases, the Supreme Court of California is comfortable making a ruling and applying an evidentiary standard when a statute does not call for one.^[176] In this situation, the argument revolved around taking away nutrition and hydration from a conscious patient, not stopping life-sustaining treatment, but the stakes are just as high because the decision affected whether the patient would live. The California court also ponders the role of the higher evidentiary standard and values its application in cases dealing with balancing the right to deny unwanted treatment with the right to protect life.^[177] This court accepts the argument that there is a risk from the state statute being “unconstitutionally applied in some cases, with grave injury to fundamental rights,” and looks for a way to mitigate this risk through seeking a higher evidentiary burden on the party wishing to withdraw nutrition and hydration.^[178] The court does not shy away from applying the statute in such a way that considers fundamental rights as well as the errors inherent in trying to determine what an incapacitated patient would want.^[179]

B. Christopher Dunn’s Case

Dunn’s situation was not quite the same as the above cases. The application of TADA’s Section 166.046 violated Dunn’s due process rights because it permits the refusal to follow the advance directive of a patient or a treatment decision made on behalf of the patient.^[180] In Dunn’s situation, there was no dispute between guardians or conservators and the state regarding who gets to make the treatment decision. Neither the state nor Dunn’s guardian was allowed to make any treatment decision. A physician and an ethics committee made the decision with no input allowed by Dunn’s family or a state-appointed guardian.^[181]

The constitutional arguments in the above cases demonstrate how courts across the nation struggle with issues regarding the withdrawal of life-sustaining treatment. In Woods, the patient was declared permanently unconscious before constitutional discussions took place.^[182] Even though Woods was in this condition, his guardian ad litem still fought for his constitutional rights,^[183] and the Kentucky Supreme Court recognized that the state statute providing for the removal of life-sustaining treatment must be interpreted to allow for clear and convincing evidence of a patient’s condition or be found unconstitutional.^[184] Dunn was not declared permanently unconscious as Woods was. While his physician and the hospital deliberated, Dunn was able to communicate at times.^[185] Unlike Woods, Dunn was not a state ward; Dunn’s mother was fighting to keep his treatment going.^[186] If the Woods case is an example of how courts are reluctant to allow the removal of life-sustaining treatment for a permanently unconscious person,^[187] courts should categorically demand a higher standard for similar decisions involving a conscious patient like Dunn. If the Kentucky Supreme Court could see the constitutional infirmity in its guardianship statute and see that the statute must be interpreted to require clear and convincing evidence,^[188] so much more should a Texas court see the constitutional infirmity of Section 166.046. As it stands, Dunn’s physician and the hospital ethics committee did not have to abide by any evidentiary standard requiring proof that Dunn was permanently unconscious or even in an irreversible condition.^[189] If there had been a standard, then the hospital could not have ignored Dunn’s conscious wishes.^[190] Moreover, there certainly was a financial conflict of interest because the hospital providing Dunn’s treatment made the decision.^[191] This conflict of interest echoes the concerns mentioned in the Woods dissent.^[192]

In Baby F., the Oklahoma Supreme Court addressed the constitutionality of a state statute and placed a higher burden of proof on the state to make sure that health care decisions for wards of the state are made in the children’s best interests.^[193] Similar to Woods, the case dealt with a patient in the state’s care, not a patient with family fighting for him.^[194] Dunn’s case was even stronger because he was not a ward of the state but had family fighting to continue life-sustaining treatment.^[195] The Oklahoma court interpreted the statute authorizing a DNR to be placed by DHS as requiring clear and convincing proof that the decision is made in the child’s best interest.^[196] Again, Section 166.046 requires no such proof for the best interest of the patient or otherwise.^[197] Dunn was conscious during parts of the proceedings and indicated his desire to live,^[198] so it is difficult to see how it would be in his best interest to discontinue life-sustaining treatment if he can indicate a desire to continue it.

As in Woods and Baby F., the California statute in the midst of the Wendland case addressed who is allowed to make health care decisions and what evidentiary standard is needed for these decisions.^[199] The California Supreme Court recognized that a clear and convincing evidence standard was needed when a conservator makes life-sustaining treatment decisions for a conservatee.^[200] The court even went so far as to declare that a conscious patient has fundamental rights to the higher standard of proof.^[201] However, Dunn could not exercise these fundamental rights, even though he was conscious at times.^[202] There is no elevated standard of proof in Section 166.046; there is no standard of proof at all.^[203] The Supreme Court of California recognized Wendland’s fundamental rights and would not allow treatment to be withdrawn, even though Wendland’s conservator wife wanted to stop the treatment.^[204] In contrast, Dunn’s mother wanted to continue treatment, but the decision to discontinue it was made solely by his physician and hospital with no burden of proof placed on them.^[205] If the California court can find constitutional issues with its guardianship statute and interpret it to honor the fundamental rights of conscious patients, so much more should a Texas court find that Section 166.046 has constitutional issues that the court could resolve by applying a higher evidentiary standard for a conscious patient who has his family fighting for him to live.

As the three cases above highlight, the withdrawal of life-sustaining treatment is an issue with which state courts need to wrestle. Family members, and even state-appointed guardians ad litem, have raised constitutional challenges to statutes dealing with the withdrawal of life-sustaining treatment.^[206]

Even though the state courts chose not to invalidate the state statutes as unconstitutional, the courts still recognized the gravity of the potential harm and examined the issue of who had the authority to decide whether to withdraw life-sustaining treatment. The courts raised the burden of proof not only to avoid determining the constitutionality of the statutes but also to address the fundamental rights at stake.^[207]

Dunn’s case raises a similar constitutional question regarding a patient’s due process rights. At the hearing challenging the constitutionality of TADA, as it related to Dunn’s case, the judge rejected the claim outright.^[208] This rejection of the constitutional question regarding TADA’s application in Dunn’s case stands in stark contrast to the decisions in the cases above. The same high standard of proof these other courts applied should have been applied in the Dunn case instead of denying relief. Decisions regarding the withdrawal of life-sustaining treatment need to be made with the patients’ interests first and foremost, and courts must examine the statutes that give others the authority to make these decisions to ensure these statutes put the patients’ rights first. Regarding TADA, the courts could require clear and convincing evidence of the issues raised in the above cases regarding the removal of life-sustaining treatment: that the patient is permanently unconscious,^[209] that the removal is in the best interest of the patient,^[210] or that the patient desired the life-sustaining treatment to be removed under certain conditions.^[211] Courts could easily apply the clear and convincing evidence standard to any of these three issues in cases brought before Texas courts when seeking an injunction against the 166.046 process. The court could decide that an injunction must be given to stop the procedure unless clear and convincing evidence is provided that proves otherwise. Instead of the burden being on the patient or the patient’s representative, the burden would then be on the hospital that desires to discontinue treatment to show by clear and convincing evidence that the withdrawal of treatment is necessary.

C. Exception to Mootness Analysis

In order for courts to get to the point of considering the merits of the case and to use an evidentiary standard, they must first determine that there is a live controversy.^[212] As shown in Christopher Dunn’s case, the trial court judge found the case to be moot, which factored into his decision to reject Dunn’s motion for summary judgment.^[213] Because there are exceptions to the mootness doctrine, courts should consider a case such as Dunn’s and decide it on the facts of the case even if the patient has died.

Numerous state courts have allowed cases regarding the withdrawal of life-sustaining treatment to go forward after the patient at the heart of the dispute has died of natural causes, typically because these cases are capable of repetition yet evade review, which Texas recognizes as an exception to mootness.^[214] The courts point to the life and death importance of the situations in allowing the cases to be heard despite the mootness doctrine. The courts in the Woods, Baby F., and Wendland cases discussed above all confronted the issue of mootness and allowed the cases to go forward despite the deaths of the plaintiffs.

In Woods, Mr. Woods died of natural causes before the circuit court could rule, and the circuit court dismissed the case as moot.^[215] The Court of Appeals then “reversed and remanded, citing an exception to the mootness doctrine, applicable when the underlying dispute is ‘capable of repetition, yet evading review.’”^[216] The case went forward through the circuit court, Court of Appeals, and onto the Supreme Court of Kentucky after the Court of Appeals cited the mootness exception that Kentucky recognizes.^[217] The Supreme Court of Oklahoma also recognizes the same exception to mootness and applied this exception in the Baby F. case when the state moved to dismiss the case as moot.^[218] The Court found that the case fit within exceptions to the mootness doctrine that are recognized by Oklahoma, including “when the challenged event is capable of repetition, yet evading review.”^[219] In Wendland, the Supreme Court of California chose to decide the case rather than dismiss it as moot after Mr. Wendland passed away while the case was being considered following oral arguments:

We have discretion to decide otherwise moot cases presenting important issues that are capable of repetition yet tend to evade review. . . . This is such a case. The case raises important issues about the fundamental rights of incompetent conservatees to privacy and life, and the corresponding limitations on conservators’ power to withhold life-sustaining treatment. Moreover, as this case demonstrates, these issues tend to evade review because they typically concern persons whose health is seriously impaired.^[220]

The Woods, Wendland, and Baby F. cases were all decided after the patients had died. The state courts recognized the importance of dealing with these issues and declined to dismiss despite the mootness doctrine. Other courts in different states, facing similar decisions regarding plaintiffs who have died, have also seen the life or death importance of these decisions and have allowed exceptions to mootness.^[221] These courts recognized “the capable of repetition yet evading review” exception to the mootness doctrine, which Texas also allows.^[222] Dunn’s case is just as important to decide as the above cases, probably even more so because he had times of consciousness and had family fighting for him. Moreover, cases such as Dunn’s will continue to be brought before Texas courts and will continue to evade review, at the expense of our judicial resources, due to the nature of the statute. Patients needing life-sustaining treatment could die before the lengthy trial process occurs. Dunn’s case fits this exception, and if an appeal is brought, the court should address the issues and decide the case on the merits.

V. Conclusion

[T]he civil rights issue you never heard of.^[223]

With medical advances occurring rapidly and ever-evolving definitions of what it means to be alive, cases such as Dunn’s will continue to cause disputes between physicians and patients or their families. Dunn was conscious and able to communicate with his family and his caregivers; therefore, his situation makes for an emotional plea to courts and public opinion as to his need for life-sustaining treatment. However, there are those patients who are in semi-conscious or minimally conscious states who will not be able to make a compelling video to share on social media. Research and new medical techniques demonstrate that some types of patients who were formerly thought to be in vegetative states are actually minimally conscious and possibly able to gain “some level of functional independence” with proper rehabilitation.^[224] These cases present even more of a challenge than Dunn’s case and they demonstrate the great difficulty in making decisions regarding who gets to continue treatment. TADA will continue to allow physicians and hospitals to unilaterally remove life-sustaining treatment from those whom these doctors deem unworthy to continue treating. The best relief would be if the statute were repealed altogether or amended so that at least there would be more more time to find another facility to take the patient. Unfortunately, the history of the legislation does not paint a hopeful picture for any amendment or repeal to pass.^[225]

The clear and convincing evidence standard is a stopgap measure to allow courts to interpret the statute more fairly when cases are raised. Physicians and hospitals can still implement the TADA process, but when disputes arise, Texas courts could follow the lead of the cases from other states in which a higher burden was placed on those wishing to discontinue life-sustaining treatment. Even if the patient at the center of the dispute dies, a court ruling that such a higher standard applied could be helpful for the next patient seeking relief from the TADA process. Even though courts are reluctant to declare these types of statutes unconstitutional, they can still recognize the significant individual interests in these disputes over life-sustaining treatment and require the higher evidentiary standard. Texas courts need to appreciate the high stakes involved in disputes with life or death consequences, and they can do so by applying the clear and convincing evidence standard when these disputes make it to court.

Rachael Thompson: J.D. Candidate, University of Houston Law Center, 2019. This Comment received the Shook, Hardy & Bacon LLP Award for Best Paper in the area of Health Law. I would like to thank Emily Cook, General Counsel, Texas Right to Life, and Joseph Nixon who introduced me to the plight of Christopher Dunn and inspired me to search for a way to help Texas patients in similar situations. Special thanks to my husband, Dave, and my sons, Joel and Sam, for all their love and support.