PUBLISHED OPINION
Case No.: 95-2010
Complete Title
of Case:
IN THE MATTER OF THE
GUARDIANSHIP OF RUTH E. J.:
PROFESSIONAL GUARDIANSHIPS,
INC.,
Petitioner-Appellant,
v.
RUTH E. J.,
Respondent-Respondent.
Submitted on Briefs: August 17,1 995
Oral Argument:
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: September 6, 1995
Opinion Filed: September
6, 1995
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Brown
(If "Special", JUDGE: Richard G. Greenwood
so indicate)
JUDGES: Cane, P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of petitioner-appellant, the cause was submitted on the brief of Steven
L. Miller of Miller & Miller of Green Bay.
Respondent
ATTORNEYS
|
COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 6, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2010
STATE
OF WISCONSIN IN COURT OF
APPEALS
IN THE MATTER OF THE
GUARDIANSHIP OF RUTH E. J.:
PROFESSIONAL
GUARDIANSHIPS, INC.,
Petitioner-Appellant,
v.
RUTH E. J.,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Brown County:
RICHARD G. GREENWOOD, Judge. Reversed
and cause remanded for further proceedings.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Ruth E. J.'s guardian appeals the
dismissal of a motion seeking an order permitting Ruth's doctors to perform
electroconvulsive treatment (ECT) on her.
The circuit court dismissed the motion because Ruth is incompetent and
could not give consent to ECT as required by § 51.61(1)(k), Stats.[1] In a summary order pursuant to an
accelerated appeal, we reversed the circuit court on the grounds that
§ 51.61(1)(k), as applied in this case, unconstitutionally deprived the
ward of her right to ECT because of her inability to express "informed consent." We now detail the basis of that order.[2]
The parties have
stipulated to the essential facts for the purpose of this appeal. All parties, with the exception of the
guardian, have waived their briefing rights.
Ruth is incompetent, and
the state has appointed a guardian for her.
As a result of severe depression, she refuses to eat and is near
dehydration and starvation. Ruth's
health care providers feed her with feeding tubes; however, this feeding
presents the inherent danger of aspiration pneumonia.
Ruth's doctors have
determined that ECT remains the only treatment option with any chance of
successfully and timely lifting Ruth's depression. Dr. Edward Orman, Ruth's attending physician, concluded that
without ECT there is a good possibility she will die from her
depression-related health problems.
However, due to her mental condition, Ruth cannot express a preference
for or against ECT.
As a result of Orman's
evaluations, Ruth's guardian brought a motion before the circuit court seeking
an order to permit ECT without consent.
The circuit court issued an order denying the motion on grounds that
§ 51.61(1)(k), Stats., does
not grant a circuit court authority to order ECT without the patient's
consent. Although not raised at trial,
Ruth's guardian appeals on the grounds that § 51.61(1)(k) would be
unconstitutional as applied to Ruth.[3]
We have discretionary
authority to consider a constitutional issue raised for the first time on
appeal. We review a constitutional
issue raised for the first time on appeal if "it is in the best interests
of justice to do so, if both parties have had an opportunity to brief the issue
and if there are no factual issues that need resolution." In re Baby Girl K., 113 Wis.2d
429, 448, 335 N.W.2d 846, 856 (1983), appeal dismissed sub nom. Buhse v.
Krueger, 465 U.S. 1016 (1984) (quoting Laufenberg v. Cosmetology
Exam. Bd., 87 Wis.2d 175, 187, 274 N.W.2d 618, 624 (1979)).
This case meets the
aforementioned requirements. Justice
compels us to review the issue because the effects of Ruth's depression
threaten her life and the requirements of § 51.61(1)(k), Stats., deny her the only treatment
likely to reverse her condition. All
parties have had the opportunity to brief the issue, and every party except the
appellant has waived its briefing rights.
Finally, no factual
issues need resolution because the parties have stipulated to the facts
necessary to decide this issue.
Therefore, we will address the constitutional challenges to
§ 51.61(1)(k), Stats. The constitutionality of a statute is a
question of law that we review de novo.
State v. Hanson, 182 Wis.2d 481, 485, 513 N.W.2d 700, 701
(Ct. App. 1994). We presume all
statutes are constitutional, and the challenger must prove unconstitutionality
beyond a reasonable doubt. Quinn
v. Dodgeville, 122 Wis.2d 570, 577, 364 N.W.2d 149, 154 (1985).
The guardian's brief
does not specify whether the guardian challenges § 51.61(1)(k), Stats., under the equal protection
clause of the Wisconsin or the United States Constitution.[4] However, the Wisconsin Supreme Court has
held that these two equal protection clauses are substantially equivalent. Funk v. Wollin Silo & Equip.,
148 Wis.2d 59, 61 n.2, 435 N.W.2d 244, 245 n.2 (1989). Under equal protection law, if a statute
intrudes upon a fundamental right or makes a suspect classification, we analyze
the statute with strict scrutiny. Treiber
v. Knoll, 135 Wis.2d 58, 70, 398 N.W.2d 756, 760 (1987). Under strict scrutiny, we require the
statute to be narrowly drawn to further a compelling government interest. Id. If the statute does not affect a "fundamental right" or
create a "suspect classification," we apply the rational basis test
to determine if the legislature has acted irrationally or arbitrarily. Id.
We conclude that
§ 51.61(1)(k), Stats.,
denies Ruth a fundamental right.[5] "Fundamental rights" are those
that are explicitly or implicitly protected by the Federal Constitution. San Antonio Independent Sch. Dist. v.
Rodriguez, 411 U.S. 1, 33-34 (1973).
The Constitution explicitly protects the right to life. U.S.
Const. amend. XIV, § 1. The
stipulated facts indicate that § 51.61(1)(k) denies Ruth the right to her
life because it denies her the only medical treatment likely to save her
life. Thus, we will apply strict
scrutiny to § 51.61(1)(k).
Presumably the
legislature enacted § 51.61(1)(k), Stats.,
to protect patients from unwarranted intrusions into their personal security
through an unwanted ECT.[6] We conclude that § 51.61(1)(k) violates
the equal protection clause because it is not narrowly tailored to promote this
interest. A statute is not narrowly
tailored if it is overbroad or underinclusive in substantial respects. See Church of Lukumi Babalu Aye
v. Hialeah, 113 S. Ct. 2217, 2233-34 (1993). Section 51.61(1)(k) is overbroad in its attempt to protect patients
from unwanted ECT treatments because it prevents all patients unable to give
"express and informed consent" from receiving ECT under any
circumstances. We conclude that the
denial of this lifesaving medical procedure to Ruth because she is in a class
of citizens unable to express consent violates her right to equal protection of
the laws.
We hold, alternatively,
that § 51.61(1)(k), Stats.,
denies Ruth lifesaving treatment in violation of her constitutional right to
life. The Fourteenth Amendment to the
United States Constitution and Article I, § 1 of the Wisconsin
Constitution extend to all the right to life and liberty, which may not be
deprived without due process of law.[7] The stipulated facts indicate that
§ 51.61(1)(k) denies Ruth the right to life because it prevents her from
obtaining the only remaining medical option likely to reverse her condition.
Section 51.61(1)(k), Stats., also denies Ruth her
constitutional right to liberty in choice of medical care. The Wisconsin Supreme Court has held that
the right to liberty "includes an individual's choice of whether or not to
accept medical treatment." In
re L.W., 167 Wis.2d at 69, 482 N.W.2d at 65. The constitutional right to choose or refuse medical treatment
extends to incompetent as well as competent individuals. Id. at 74, 482 N.W.2d at
67.
As stipulated, Ruth
cannot give informed consent.
Consequently, Ruth cannot obtain ECT under any circumstances because she
cannot meet the requirement of § 51.61(1)(k), Stats., to give "express and informed consent" to
obtain an ECT. We conclude, therefore,
that § 51.61(1)(k), as applied to the stipulated facts, denies Ruth her
right to choose medical procedures.
Pursuant to our earlier
order, the circuit court should conduct a hearing or, in the court's
discretion, a receipt of stipulation, that resolves the following factual
questions:
1. Whether Ruth E.J.'s mental
status presents a life threatening condition;
2. whether the proposed
therapy is a life saving remedy;
3. whether all other
reasonable alternatives have been exhausted;
4. whether two examining
physicians recommend the treatment;
5. whether,
in the trial court's independent judgment, the electroconvulsive treatment is
in Ruth E.J.'s best interests.
Should
the court resolve the preceding factual questions affirmatively, it may order
treatment.
By the Court.—Order
reversed and cause remanded for further proceedings.
[1]
Section 51.61(1)(k), Stats.,
provides that, with exceptions not relevant here, a patient shall:
Have a right not to be subjected to treatment procedures such as psychosurgery, or other drastic treatment procedures without the express and informed consent of the patient after consultation with his or her counsel and legal guardian, if any. Express and informed consent of the patient after consultation with the patient's counsel and legal guardian, if any, is required for the use of electroconvulsive treatment.
[2] Because the circuit court declined to hear the merits of the motion on grounds it had no authority, it did not decide to accept the parties' stipulation of facts as a factual basis for an order granting relief.
[3] Guardians may, under some circumstances, exercise substitute judgment for an incompetent ward in areas of medical treatment. See In re L.W., 167 Wis.2d 53, 78-81, nn.11 and 12, 482 N.W.2d 60, 69-70 nn. 11 and 12 (1992). We need not address the limits of that doctrine to the facts of this case because the issue is not raised.
[4]
The due process and equal protection clauses of the Wisconsin
Constitution provide: "All people
are born equally free and independent, and have certain inherent rights; among
these are life, liberty and the pursuit of happiness; to secure these rights,
governments are instituted, deriving their just powers from the consent of the
governed." Wis. Const. art. I, § 1.
The due process and equal protection clauses of the United States Constitution prohibits a state from depriving "any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.
[5] We note that the mentally ill or in this case, "those unable to give informed consent due to their mental illness" are probably not a suspect class. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985).
[6] Appellants argue the state interest in preventing unwanted ECT is not compelling because of the medical advances made in the administration of ECT. See Richard D. Weiner, Convulsive Therapies, Comprehensive Textbook of Psychiatry/IV, ch. 30.5 at 1558 (Harold I. Kaplan & Benjamin J. Sadock ed. 1985). We do not address these arguments because we conclude that § 51.61(1)(k), Stats., is not narrowly tailored.