Keiner v. Community Convalescent Center (133 Ill. 2d 33, 1989)

JUSTICE RYAN

delivered the opinion of the court:

Bonnie Keiner, daughter and guardian of the estate and person of Dorothy M. Longeway, petitioned the circuit court of Du Page County to enter an order permitting her to withdraw the artificially administered nutrition and hydration currently sustaining her mother. Community Convalescent Center, the nursing facility where Longeway now resides, intervened and filed a motion to dismiss. The court granted this motion, and we agreed to hear a direct appeal of this dismissal pursuant to Supreme Court Rule 302(b) (107 Ill. 2d R. 302(b)). We reverse and remand.

Beginning in 1976, Dorothy M. Longeway suffered a series of strokes and other illnesses which eventually rendered her unconscious. According to the guardian’s petition, Longeway, now 76 years old, has lost all personality, memory, purposeful action, social interaction, thought and emotion, due to severe brain damage. Her prognosis is very poor; although she is not medically “brain dead,” the neurological damage is so extensive that she will never regain consciousness. Longeway cannot communicate, but opens her eyes and responds to verbal commands and painful stimuli. She breathes without assistance, but cannot chew or swallow, and requires a surgically implanted gastrostomy tube to receive food and water.

The guardian’s petition alleged that Longeway, while still conscious and competent, indicated on several occasions that she did not wish to be kept alive by a machine or device, and would rather die naturally than linger. She did not, however, execute a living will (see Ill. Rev. Stat. 1987, ch. 110½, par. 701 et seq.) or a health care power of attorney (see Ill. Rev. Stat. 1987, ch. 110½, par. 804 — 1 et seq.). The guardian urged that the gastrostomy tube be withdrawn from Longeway, seeking this relief in two counts: that the guardian be allowed to substitute her judgment for that of her incompetent mother or, alternatively, that she be allowed to make this decision as being in the best interests of her mother.

The circuit court summarily dismissed the “best interests” count, but set a hearing date on the “substituted judgment” count. The court may have felt that substituted judgment was an acceptable procedure for dealing with terminally ill incompetent patients because of the recent appellate court decision in In re Estate of Prange (1988), 166 Ill. App. 3d 1091. This court subsequently vacated the appellate court decision in Prange and dismissed the appeal in this court after the patient’s death. (In re Estate of Prange (1988), 121 Ill. 2d 570.) When informed of our action in Prange, the circuit court then cancelled the scheduled hearing and dismissed the substituted-judgment count. The guardian appeals the dismissal of both counts.

The issue in this case is whether the guardian of an incompetent, seriously ill patient may exercise a right to refuse artificial nutrition and hydration on behalf of his ward and, if so, how this right may be exercised.

A number of State courts have addressed the question of whether life-sustaining measures may be withdrawn from incompetent patients: Arizona (Rasmussen v. Fleming (1987), 154 Ariz. 207, 741 P.2d 674), California (Barber v. Superior Court (1983), 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484), Connecticut (Foody v. Manchester Memorial Hospital (Super. 1984), 40 Conn. Supp. 127, 482 A.2d 713), Delaware (Severns v. Wilmington Medical Center, Inc. (Del. Ch. 1980), 425 A.2d 156), Florida (John F. Kennedy Memorial Hospital, Inc. v. Bludworth (Fla. 1984), 452 So. 2d 921), Georgia (In re L.H.R. (1984), 253 Ga. 439, 321 S.E.2d 716), Louisiana (In re P.V.W. (La. 1982), 424 So. 2d 1015), Maine (In re Gardner (Me. 1987), 534 A.2d 947), Massachusetts (Superintendent of Belchertown State School v. Saikewicz (1977), 373 Mass. 728, 370 N.E.2d 417), Minnesota (In re Torres (Minn. 1984), 357 N.W.2d 332), Missouri (Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408), New Jersey (In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647), New York (In re Storar (1981), 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266), Ohio (Leach v. Akron General Medical Center (1980), 68 Ohio Misc. 1, 426 N.E.2d 809), and Washington (In re Hamlin (1984), 102 Wash. 2d 810, 689 P.2d 1372). In addition, at least one Federal case concerned this issue. (Gray v. Romeo (D.R.I. 1988), 694 F. Supp. 580.) With the exception of Missouri, the courts in the cases cited above are unanimous in allowing the withdrawal of life-sustaining medical procedures under appropriate circumstances. At least eight State courts have considered specifically the removal of nutrition and hydration: California (In re Drabick (1988), 200 Cal. App. 3d 185, 245 Cal. Rptr. 840), Florida (Corbett v. D ’Alessandro (Fla. App. 1986), 487 So. 2d 368), Maine (In re Gardner (Me. 1987), 534 A.2d 947), Massachusetts (Brophy v. New England Sinai Hospital, Inc. (1986), 398 Mass. 417, 497 N.E.2d 626), Missouri (Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408), New Jersey (In re Jobes (1987), 108 N.J. 394, 529 A.2d 434), New York (Delio v. Westchester County Medical Center (1987), 129 A.D.2d 1, 516 N.Y.S.2d 677; but see In re O’Connor (1988), 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886), and Washington (In re Grant (1987), 109 Wash. 2d 545, 747 P.2d 445). Again, with the exception of Missouri, and New York in In re O’Connor, all the jurisdictions cited have permitted artificial nutrition and hydration to be withdrawn from certain types of patients.

The courts which have grappled with the issue of “the right to die,” or as it is often termed, “the right to refuse life-sustaining medical treatment,” have found themselves thrust into a realm where law, medicine, and religion intersect. Advancements in medical science have redefined death from a cessation of pulse and respiration (Black’s Law Dictionary 488 (4th ed. 1968)) to a cessation of brain activity (see In re Haymer (1983), 115 Ill. App. 3d 349; Ill. Rev. Stat. 1987, ch. IKWr, par. 302(b)). Hopelessly or terminally ill patients who in the past would have met with a swift end, now find that medical science can sustain them, near the threshold of death, but not yet across it. “Advances in this area are occurring with such rapidity that science has outstripped the ability of society to develop an ethical base for dealing with problems caused by new possibilities.” (In re L.H.R. (1984), 253 Ga. 439, 445, 321 S.E.2d 716, 722.) The role of the judiciary in this area is an uncertain one. Frequently, the courts are not consulted at all. There is reliable information that for many years, members of a patient’s family, together with doctors and clergy, have made decisions to withdraw life-sustaining equipment from incompetent, hopelessly ill patients without seeking judicial approval. (See In re Storar (1981), 52 N.Y.2d 363, 385, 420 N.E.2d 64, 75, 438 N.Y.S.2d 266, 277 (Jones, J., dissenting) (citing survey of physicians showing that 61% believe their colleagues practice euthanasia).) The judiciary is viewed as ill suited to resolve these situations which involve complex medical procedures, diverse religious views, and a need for quick decision-making.

The problem becomes more acute when dealing with artificial nutrition and hydration. Food and water are emotionally symbolic in that food and water are basic necessities of life, and the feeding of those who are unable to feed themselves is the most fundamental of all human relationships. (See In re Grant (1987), 109 Wash. 2d 545, 559-60, 747 P.2d 445, 453.) Also, the removal of food and water causes death from dehydration, which can be an unpleasant experience, as one justice, in dissent, noted:

“Removal of the G tube would likely create various effects from the lack of hydration and nutrition, leading ultimately to death. Brophy’s mouth would dry out and become caked or coated with thick material. His lips would become parched and cracked. His tongue would swell, and might crack. His eyes would recede back into their orbits and his cheeks would become hollow. The lining of his nose might crack and cause his nose to bleed. His skin would hang loose on his body and become dry and scaly. His urine would become highly concentrated, leading to burning of the bladder. The lining of his stomach would dry out and he would experience dry heaves and vomiting. His body temperature would become very high. His brain cells would dry out, causing convulsions. His respiratory tract would dry out, and the thick secretions that would result could plug his lungs and cause death. At some point within five days to three weeks his major organs, including his lungs, heart, and brain, would give out and he would die. The judge found that death by dehydration is extremely painful and uncomfortable for a human being. The judge could not rule out the possibility that Paul Brophy could experience pain in such a scenario. Paul Brophy’s attending physician described death by dehydration as cruel and violent.” (Brophy v. New England Sinai Hospital, Inc. (1986), 398 Mass. 417, 444 n.2, 497 N.E. 2d 626, 641 n.2 (Lynch, J., dissenting in part).)

Persistently comatose patients, however, are said to lack the capacity to feel pain and suffering, thus ameliorating concerns of a horrifying death. (American Academy of Neurology, Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistently Vegetative State Patient (Adopted April 21, 1988).) If indeed they feel no pain, the concern about these patients then shifts to the prospect of remaining comatose and sustained by artificial feeding for long periods of time until death finally occurs. (See Brophy, 398 Mass, at 437, 497 N.E.2d at 637 (longest recorded survival in this manner is 37 years); Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408, 411 (comatose 30-year-old woman sustained by gastrostomy tube could live 30 years).) Faced with this dilemma, the courts, with the aid of the medical profession, have attempted to look beyond the symbolism of food and water to assess the artificial nature of delivering sustenance to these patients.

Artificial nutrition and hydration is considered a medical life-prolonging treatment by the American Medical Association. In a recent ethics opinion, the AMA states:

“Even if death is not imminent but a patient’s coma is beyond doubt irreversible and there are adequate safeguards to confirm the accuracy of the diagnosis and with the concurrence of those who have responsibility for the care of the patient, it is not unethical to discontinue all means of life-prolonging medical treatment. Life-prolonging medical treatment includes medication and artificially or technologically supplied respiration, nutrition or hydration.” (Emphasis added.) (American Medical Association Council on Ethics & Judicial Affairs, Opinion 2.18 (1986).)

Artificial nutrition and hydration are also considered as death-delaying procedures in the Living Will Act (Ill. Rev. Stat. 1987, ch. 110½, par. 702(d)) and as health care in the Powers of Attorney for Health Care Law (Ill. Rev. Stat. 1987, ch. 110½, pars. 804 — 10(a), (b)(1)).

State courts which have allowed nutrition and hydration to be withdrawn from incurably ill patients have agreed that nasogastric tubes, gastrostomies, or intravenous infusions are medical treatments and therefore analytically distinguishable from spoon-feeding or bottle-feeding. (See, e.g., In re Conroy (1985), 98 N.J. 321, 372-73, 486 A.2d 1209, 1236; Delio v. Westchester County Medical Center (1987), 129 A.D.2d 1, 18-19, 516 N.Y.S.2d 677, 688-89; Corbett v. D’Alessandro (Fla. App. 1986),. 487 So. 2d 368, 371; In re Grant (1987), 109 Wash. 2d 545, 559-62, 747 P.2d 445, 452-54; In re Gardner (Me. 1987), 534 A.2d 947, 954-55.) Termination of these intrusive procedures does not deprive the patient of life; rather, the inability of the patient to chew or swallow, as a result of his illness, is viewed as the ultimate agent of death. (Delio, 129 A.D. at 23-24, 516 N.Y.S.2d at 692; Brophy, 398 Mass, at 439, 497 N.E.2d at 638.) Consequently, the consensus opinion treats artificial nutrition and hydration as a medical treatment and analyzes the problem of its withdrawal accordingly. We agree with this view, and next must turn to the question of whether a patient has the right to refuse this type of treatment.

The seminal case which addressed the issue of withdrawing life-sustaining medical procedures was In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647. In that case, 22-year-old Karen Ann Quinlan was in a comatose, persistently vegetative state. The New Jersey Supreme Court allowed Quinlan’s father, acting as her guardian, to direct the removal of life-supporting apparatus. (Artificial nutrition and hydration, however, were not removed.) Although Quinlan’s father asserted several different constitutionally based theories in support of the relief requested, the court found that the right to refuse treatment was premised on the constitutional right of privacy.

Other theories which the Quinlan court considered and rejected included the constitutional rights of free exercise of religion (U.S. Const., amend. I) and freedom from cruel and unusual punishment (U.S. Const., amend. VIII). Subsequent decisions allowing the refusal of life-sustaining medical treatment have been premised upon Federal privacy rights (In re L.H.R. (1984), 253 Ga. 439, 321 S.E.2d 716), State constitutional guarantees of privacy (Corbett v. D’Alessandro (Fla. App. 1986), 487 So. 2d 368), State common law (Delio, 129 A.D.2d 1, 516 N.Y.S.2d 677), or various provisions in State guardianship statutes (In re Drabick (1988), 200 Cal. App. 3d 185, 245 Cal. Rptr. 840). Drawing upon this background, the guardian in the case before us contends that Mrs.

Longeway’s right to discontinue nutrition and hydration is grounded in Federal and Illinois constitutional privacy rights, common law, and the Illinois Probate Act.

Examining the Federal right of privacy, we note that this right is not explicitly mentioned in the United States Constitution. Nevertheless, the Supreme Court held in Griswold v. Connecticut (1965), 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678, that a constitutional right of privacy exists in penumbras emanating from the various guarantees in the Bill of Rights. Constitutional privacy, however, encompasses only personal rights which are fundamental or implicit in the concept of ordered liberty (Roe v. Wade (1973), 410 U.S. 113, 152, 35 L. Ed. 2d 147, 176, 93 S. Ct. 705, 726), or which are “ ‘deeply rooted in this Nation’s history and tradition.’ ” (Bowers v. Hardwick (1986), 478 U.S. 186, 192, 92 L. Ed. 2d 140, 146, 106 S. Ct. 2841, 2844, quoting Moore v. City of East Cleveland (1977), 431 U.S. 494, 503, 52 L. Ed. 2d 531, 540, 97 S. Ct. 1932, 1938.) The Supreme Court has never ruled on whether the right of privacy guarantees a right to refuse medical care. In fact, in Roe, the Court noted that the right of privacy is not absolute, and rejected the idea that “one has an unlimited right to do with one’s body as one pleases.” (Roe, 410 U.S. at 154, 35 L. Ed. 2d at 177, 93 S. Ct. at 739.) Moreover, the Supreme Court recently declined to expand the number of rights deemed fundamental and therefore protected by the zone of privacy. Bowers, 478 U.S. at 194-95, 92 L. Ed. 2d at 148, 106 S. Ct. at 2846 (holding that homosexual acts are not constitutionally protected).

Lacking guidance from the Supreme Court, we decline to address whether Federal privacy guarantees the right to refuse life-sustaining medical treatment. Lacking a clear expression of intent from the drafters of our 1970 State constitution, we similarly abstain from expanding the privacy provision of our State constitution to embrace this right. (See Ill. Const. 1970, art. I, §6 (“[t]he people shall have the right to be secure in their persons *** against *** invasions of privacy ***”).) Instead, we follow the wisdom of the Supreme Court in avoiding constitutional questions when the issue at hand may be decided upon other grounds. (Rescue Army v. Municipal Court (1947), 331 U.S. 549, 568-69, 91 L. Ed. 1666, 1678, 67 S. Ct. 1409, 1419-20.) In the present case, we find a right to refuse life-sustaining medical treatment in our State’s common law and in provisions of the Illinois Probate Act.

Under common law, a patient normally must consent to medical treatment of any kind. Consent is required to maintain the right of personal inviolability: “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” (Union Pacific Ry. Co. v. Botsford (1891), 141 U.S. 250, 251, 35 L. Ed. 734, 737, 11 S. Ct. 1000, 1001.) Viewing this right in the context of medical treatment, Justice Cardozo stated, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” (Schloendorff v. Society of New York Hospital (1914), 211 N.Y. 125, 129-30, 105 N.E. 92, 93.) This court has held that informed consent is a prerequisite to surgery. (Pratt v. Davis (1906), 224 Ill. 300.)

Lacking consent, a physician cannot force medical care upon a patient, even in life-threatening situations. (Cf. In re Estate of Brooks (1965), 32 Ill. 2d 361 (right to refuse life-saving treatment found in first amendment free exercise of religion clause).) Exceptions to the doctrine of informed consent do exist, for example, in emergency situations (6A C.J.S. Assault & Battery §7 (1975)) or when a minor needs care (see, e.g., Ill. Rev. Stat. 1987, ch. 111, pars. 4502, 4503).

Furthermore, because a physician must obtain consent from a patient prior to initiating medical treatment, it is logical that the patient has a common law right to withhold consent and thus refuse treatment. This right incorporates all types of medical treatment, including life-saving or life-sustaining procedures. Many of our sister States have based the right to refuse life-sustaining treatment wholly or partly on this common law basis. (See, e.g., Conroy, 98 N.J. 321, 486 A.2d 1209; Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266; Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840; Rasmussen, 154 Ariz. 207, 741 R2d 674; Gardner, 534 A.2d 947.) We find the reasoning of these opinions persuasive, and hold that in Illinois, the common law right to refuse medical treatment includes, under appropriate circumstances, artificial nutrition and hydration.

Because we are concerned here not with the right of a patient’s personal refusal of medical treatment, but rather with the exercise of this common law right through a surrogate, we must examine relevant provisions of the Probate Act to see if a guardian may act as that surrogate. We find that the Probate Act impliedly authorizes a guardian to exercise the right to refuse artificial sustenance on her ward’s behalf. Section 11a — 17 of the Probate Act specifically permits a guardian to make provisions for her ward’s “support, care, comfort, health, education and maintenance.” (Ill. Rev. Stat. 1987, ch. 110½, par. 11a — 17.) Moreover, if the patient previously executed a power of attorney under the Powers of Attorney for Health Care Law (Ill. Rev. Stat. 1987, ch. 110½, par. 804 — 1 et seq.), that act permits her to authorize her agent to terminate the food and water that sustain her (Ill. Rev. Stat. 1987, ch. IIOV2, par. 804 — 10). If a health care agency is in force, and a court appoints a guardian to handle other matters for the ward, the Probate Act specifically provides that the guardian has “no power, duty or liability with respect to any *** health care matters covered by the agency.” (Ill. Rev. Stat. 1987, ch. 110½, par. 11a — 17(c).) Logically, the legislature would not have prohibited the guardian from usurping the authority of an agent acting under a health care power of attorney, if the guardian could not have exercised the agent’s powers in the first place. Thus, if only an agent can terminate food and water under a power of attorney, the Probate Act would not have precluded a guardian from interfering with this prerogative, unless the guardian also would have this power.

It is argued that a guardian cannot have this power because of this court’s decision in In re Marriage of Drews (1986), 115 Ill. 2d 201. In Drews, we held that at-guardian had no standing to file suit to dissolve her ward’s marriage, finding nothing in the Probate Act that “grants [a] guardian standing to maintain or defend any legal proceeding.” (Emphasis in original.) (Drews, 115 Ill. 2d at 206.) Here, however, the guardian is not instituting a legal proceeding or suit on behalf of a ward, but is merely petitioning the court for authority to perform an act which is within the implied authority granted by the Probate Act. Consequently, we find Drews inapposite to the case at bar and hold that a guardian may exercise the right to refuse artificial sustenance on behalf of a ward in accordance with the guidelines discussed below.

The first step in allowing an incompetent patient to refuse artificial nutrition and hydration through a surrogate is to define, as best we can, what kind of an incompetent patient is eligible for surrogate exercise of this right. First, we wish to state emphatically that we do not condone suicide or active euthanasia in this State. Accordingly, an incompetent patient must be terminally ill before his right to refuse artificial sustenance may be exercised. We note that the Living Will Act (Ill. Rev. Stat. 1987, ch. 110½, par. 702(h)) defines “terminal condition” as an incurable and irreversible condition which is such that death is imminent and the application of death-delaying procedures serves only to prolong the dying process. We find that it is appropriate to apply this definition to the requirement we have just stated that the incompetent patient must be terminally ill. Second, such patient must be diagnosed as irreversibly comatose, or in a persistently vegetative state. Although neurologists are the most adept at defining these terms and will reliably diagnose each patient on a case-by-case basis, the reported testimony of a physician in Brophy is illustrative:

“A physician who performed a neurological evaluation of Brophy testified that a persistent vegetative state is a condition in which the patient:

‘(a) shows no evidence of verbal or non-verbal communication;

(b) demonstrates no purposeful movement or motor ability;

(c) is unable to interact purposely with stimulation provided by his environment;

(d) is unable to provide for his own basic needs;

(e) demonstrates all of the above for longer than three months.’ ” (Brophy, 398 Mass, at 421 n.4, 497 N.E.2d at 628 n.4.)

Finally, the accuracy of the diagnosis must be safeguarded. Consequently, the patient’s attending physician along with at least two other consulting physicians must concur in the diagnosis. See Foody, 40 Conn. Supp. at _, 482 A.2d at 721.

The next step is to balance an eligible patient’s right to discontinue sustenance against any interests the State may have in continuing it. The cases identify four countervailing State interests: “(1) the preservation of life; (2) the protection of the interests of innocent third parties; (3) the prevention of suicide; and (4) maintaining the ethical integrity of the medical profession.” (Superintendent of Belehertown State School v. Saikewicz (1977), 373 Mass. 728, 741, 370 N.E.2d 417, 425.) Normally, none of these interests will override a patient’s refusal of artificially administered food and water. Adequate safeguards exist to protect life and third parties, and to prevent suicide. Moreover, the ethical integrity of the medical profession can be ensured by not compelling (by court order or any other means) any medical facility or its staff to act contrary to their moral principles. The patient can be transferred to a different facility or a new physician can be appointed to carry out the patient’s wishes, if the current staff or physician cannot. See Brophy, 398 Mass, at 439-41, 497 N.E.2d at 638-39.

The next step is to detail how the patient’s wishes can be ascertained. Obviously, a patient who is irreversibly comatose or in a vegetative state will be incompetent, unable to communicate his intent. The courts have generally employed one of two theories in ascertaining an incompetent patient’s wishes: “best interests” or “substituted judgment.”

The best-interests approach has been utilized by several courts dealing with this issue. (See, e.g., Drabick, 200 Cal. App. 3d. 185, 245 Cal. Rptr. 840; Rasmussen, 154 Ariz. 207, 741 P.2d 674; Torres, 357 N.W.2d 332.) Under the best-interests test, a surrogate decisionmaker chooses for the incompetent patient which medical procedures would be in the patient’s best interests. The criteria used include “relief from suffering, preservation or restoration of functioning, and quality and extent of sustained life.” (Rasmussen, 154 Ariz. at 222, 741 P.2d at 689.) The problem with the best-interests test is that it lets another make a determination of a patient’s quality of life, thereby undermining the foundation of self-determination and inviolability of the person upon which the right to refuse medical treatment stands. A dilemma arises, of course, when the patient is an infant or lifelong incompetent who never could have made a reasoned judgment about his quality of life. While not passing on the viability of the best-interests theory in Illinois, we decline to adopt it in this case because we believe the record demonstrates the relevancy of the substituted-judgment theory. Furthermore, the substituted-judgment theory has already been implicitly adopted in Illinois by our legislature in the Powers of Attorney for Health Care Law. The Law states: “Your agent will have authority *** to obtain or terminate any type of health care, including withdrawal of food and water *** if your agent believes such action would be consistent with your intent and desires.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110½, par. 804 — 10.

Under substituted judgment, a surrogate decision-maker attempts to establish, with as much accuracy as possible, what decision the patient would make if he were competent to do so. Employing this theory, the surrogate first tries to determine if the patient had expressed explicit intent regarding this type of medical treatment prior to becoming incompetent. (See In re O’Connor (1988), 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886.) Where no clear intent exists, the patient’s personal value system must guide the surrogate:

“ ‘[E]ven if no prior specific statements were made, in the context of the individual’s entire prior mental life, in-eluding his or her philosophical, religious and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering and death, that individual’s likely treatment/nontreatment preferences can be discovered. Family members are most familiar with this entire life context. Articulating such knowledge is a formidable task, requiring a literary skill beyond the capacity of many, perhaps most, families. But the family’s knowledge exists nevertheless, intuitively felt by them and available as an important decisionmaking tool.’ ” Jobes, 108 N.J. at 415, 529 A.2d at 445, quoting Newman, Treatment Refusals for the Critically III: Proposed Rules for the Family, the Physician and the State, 3 N.Y.L. Sch. Hum. Rts. Ann. 45-46 (1985).

Actual, expressed intent of a desire to have artificial sustenance withdrawn is what the New York Court of Appeals required in the recent decision, In re O’Connor (1988), 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886. There, the court held that “despite its pitfalls and inevitable uncertainties, the inquiry must always be narrowed to the patient's expressed intent, with every effort made to minimize the opportunity for error.” (O’Connor, 72 N.Y.2d at 530, 531 N.E.2d at 613, 534 N.Y.S.2d at 892.) The concurring opinion, however, criticizes this specific-subjective-intent rule, stating that what it requires is factually impossible because there is. no way to determine what the actual, present intent of an incompetent patient is. Moreover, the concurrence states that the result in O’Connor under the specific-subjective-intent rule and under a substituted-judgment test would be the same. Consequently, we find that although actual, specific express intent would be helpful and compelling, the same is not necessary for the exercise of substituted judgment by a surrogate. In this case, Mrs. Longeway’s guardian must substitute her judgment for that of Longeway’s, based upon other clear and convincing evidence of Longeway’s intent. The guidelines quoted above from Jobes should aid in ascertaining Longeway’s desires and in reaching a decision. On remand, the court should not hesitate to admit any reliable and relevant evidence if it -will aid in judging Longeway’s intent.

The final step in a patient’s exercise of the right to refuse life-sustaining treatment is to determine the role of the court. The majority of the cases addressing the issue do not specifically require a court order to withdraw artificial life support. (Rasmussen, 154 Ariz. 207, 741 P.2d 674; Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840; Jobes, 108 N.J. 394, 529 A.2d 434; Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266; contra In re P.V.W. (La. 1982), 424 So. 2d 1015.) Nevertheless, we feel that to halt artificial sustenance, the intervention of a judge is proper for several reasons.

First, Illinois has a strong public policy of preserving the sanctity of human life, even if in an imperfect state. (Siemieniec v. Lutheran General Hospital (1987), 117 Ill.v 2d 230, 249.) “ ‘Health care professionals serve patients best by maintaining a presumption in favor of sustaining life, while recognizing that competent patients are entitled to choose to forego any treatments, including those that sustain life.’ ” (In re Farrell (1987), 108 N.J. 335, 351, 529 A.2d 404, 412, quoting President’s Commission for the Study of Ethical Problems in Medicine and Biomedical & Behavioral Research, Deciding to Forego Life Sustaining Treatment 3 (1983).) Because we agree that a presumption exists favoring life, we find that scrutiny by a judge is appropriate in these cases. Furthermore, since the key element in deciding to refuse or withdraw artificial sustenance is determining the patient’s intent, we require proof of this element by clear and convincing evidence. Accord Rasmussen, 154 Ariz. 207, 741 P.2d 674; P.V.W., 424 So. 2d 1015; Gardner, 534 A.2d 947; Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266; Leach, 68 Ohio Misc. 1, 426 N.E.2d 809.

Second, court intervention is necessary to guard against the remote, yet real possibility that greed may taint the judgment of the surrogate decisionmaker. (See generally Drabick, 200 Cal. App. 3d at 218, 245 Cal. Rptr. at 861.) We stress that the record in the case before us reveals no such problems and we do not imply that greed is present here. We can foresee other cases, however, where the surrogate decisionmaker stands to profit from the patient’s demise and covets ill-gotten wealth to the point of fatal attraction. Generally, no penetrating investigation will be required. Nevertheless, the judge is free to inquire as to the beneficiaries and extent of the patient’s estate, if it appears necessary to do so.

Third, the courts have a parens patriae power which enables them to protect the estate and person of incompetents. (Quinlan, 70 N.J. at 44, 355 A.2d at 666; 27 Am. Jur. 2d Equity §69 (1966).) Moreover, if the surrogate decisionmaker is a court-appointed guardian, procedural due process questions involving deprivation of life may arise. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) Although it is uncertain whether sufficient State action is present to invoke the protections of procedural due process, utilizing a court to oversee the guardian’s decision as to the termination of artificial nutrition and hydration will forestall any potential constitutional infirmities.

We recognize that some will consider court intervention objectionable. The medical profession may rightfully resent judicial intrusion into its domain. The slow, deliberate nature of the court system may frustrate the family and loved ones of the patient. Although we feel that the courts can act expeditiously in clear-cut uncontested cases, we acknowledge these objections and the difficulty in reaching a balanced approach to this dilemma. For this reason, we, like most courts that have pondered these issues, invite the legislature to address this problem. (Accord Rasmussen, 154 Ariz. 207, 741 P.2d 674; L.H.R., 253 Ga. 439, 321 S.E.2d 716; P.V.W, 424 So. 2d 1015; Farrell, 108 N.J. 335, 529 A.2d 404; Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266; Grant, 109 Wash. 2d 545, 747 P.2d 445.) Because we believe the right to refuse artificial sustenance is premised on common law and not necessarily constitutionally based, the legislature is free to streamline, tailor, or overrule the procedures outlined in this opinion to the extent that no constitutional doctrine is abrogated. The legislature is the appropriate forum for the ultimate resolution of the questions surrounding the right to die:

“Legislatures are also considered to be better suited than courts to set guidelines in this area. Legislatures may be better able to balance the interests involved in determining whether to permit termination of care, and they have the power to make laws and regulations for the protection of the public health and welfare. In addition, the delicate ethical considerations involved in making a ‘right to die’ decision may require a legislative determination, as the legislature has the job of weighing and understanding social interaction. Finally, it is argued that legislatures directly represent the people and thus are best able to determine social policy.” Brown, Therefore, Choose Death, 10 Hum. Rts. J. 39, 44 (1982).

Our legislature has peripherally addressed the question before us in both the Living Will Act (Ill. Rev. Stat. 1987, ch. 110½, par. 701 et seq.) and the Powers of Attorney for Health Care Law (Ill. Rev. Stat. 1987, ch. 110½, par. 801 — 1 et seq.). However, neither a living will nor a health care power of attorney is involved in this case. Therefore, neither law is helpful, except as it may reflect legislative intent or public policy. The Living Will Act specifically includes intravenous feeding and tube feeding as death-delaying procedures which, under the

direction of a living will, may be withdrawn. However, the Living Will Act provides that nutrition and hydration may not be withdrawn or withheld if the withdrawal or withholding would result in death solely from dehydration or starvation, rather than from the existing terminal condition. Ill. Rev. Stat. 1987, ch. 110½, par. 702(d).

In the Powers of Attorney for Health Care Law, it is specifically authorized that food and water and other life-sustaining measures may be withdrawn (Ill. Rev. Stat. 1987, ch. 110½, pars. 804 — 10(a), (b)(1)) without any limitation on the exercise of that power, if death would result solely from dehydration or starvation rather than the existing terminal condition. Thus, it cannot be said that the limitation on the withdrawal of nutrition and hydration in the Living Will Act expresses the public policy of this State and prohibits all such withdrawal if it would result in death solely from dehydration or starvation, rather than from the existing terminal condition, because, as noted, the Powers of Attorney for Health Care Law contains no such limitation on the power of the agent to withdraw food and water. Furthermore, the Powers of Attorney for Health Care Law specifically provides that that law prevails over all inconsistent acts and “[i]f the principal has a living will *** the living will shall not be operative so long as an agent is available who is authorized by a health care agency to deal with the subject of life-sustaining or death-delaying procedures for and on behalf of the principal.” Ill. Rev. Stat. 1987, ch. 110½, par. 804-11.

In 1988, House Bill 4094 was introduced in the General Assembly. This was a new act not referring to or amending the Living Will Act or the Powers of Attorney for Health Care Law. House Bill 4094 created a presumption that nutrition and hydration are to be given unless refused by the patient while competent, with certain exceptions. Whether or not this bill was meant to be an expression of legislative intent that the policy of this State does not permit the withdrawal of nutrition or hydration, as is sought in the case before us, is not clear from the language of the bill, or from the legislative debates. In any event, the bill was defeated.

We therefore find no law or expression by the legislature of public policy which prohibits the exercise of the power of the guardian to withdraw nutrition and hydration in this case. We acknowledged above that the legislature is in a better position than are the courts to resolve the sensitive issues presented in this case. However, we have this case before us for decision and we must decide it in light of the law and the public policy which now exists. We cannot defer to the legislature for some possible future expression from that body as to public policy, which may or may not be forthcoming. As we have read the present law and the expression of the General Assembly as to public policy, as noted above, we see nothing which would prohibit the guardian from acting in the manner directed in this opinion.

Until legislative action directing otherwise, however, any exercise of the common law right to refuse or withdraw artificial nutrition and hydration by a surrogate must follow the guidelines of this opinion. Consequently, the decision of the trial court in this case is reversed, and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

JUSTICE CALVO took no part in the consideration or decision of this case.

JUSTICE WARD,

dissenting:

In human terms the most awesome of this court’s responsibilities is judging whether the imposition of the death penalty following a criminal trial should be carried out. Our legislature has authorized the imposition of that penalty and no one would suggest that in the absence of that legislative empowerment, this court could direct the taking of the life of the most depraved criminal. Justice Clark in his dissent convincingly observes that, not only has the legislature not authorized the withdrawal of life-sustaining food and fluids for the purpose of causing death, but in express terms has prohibited it in the absence of conditions not present here. Cases like this are among the most melancholy in the human experience, but the agony of deciding does not give license to act without, and even more, to act in disregard of, the legislative will.

Today’s holding will of course reach beyond Mrs. Longeway. A public guardian in an appeal before this court which closely resembles this case has acknowledged that several thousand Illinois residents are disabled by conditions related to age, traumatic injury or congenital defect and require tube-feeding. These persons comprise one of the most vulnerable groups in our society. A recent Federal survey reports that 19.4% of all patients in Illinois’ 237 intermediate care facilities and 33.8% of all residents in this State’s skilled nursing homes receive tube-feeding or need assistance to obtain sustenance. (Health Standards & Quality Bureau, United States Health Care Financing Administration, Medicare/ Medicaid Nursing Home Information 87/88, 1 Report on Illinois 1, 4 (Dec. 1, 1988).) The number of these patients in Mrs. Longeway’s condition and who are under comparable circumstances is unknown.

In cases where abortion is the issue the inquiry is when the protection of being a human begins; here, in a real sense, the majority determines that a third person may judge when that protection has been lost by an incompetent person. That determination results from the majority’s holding that an incompetent person has a common law right to refuse artificial nutrition and hydration and that, as an expedient, I suggest, it is said that this right may be exercised by a third person substituting for the incompetent person. The majority states:

“Under substituted judgment, a surrogate decision-maker attempts to establish, with as much accuracy as possible, what decision the patient would make if he were competent to do so.” 133 Ill. 2d at 49.

The determination of whether there is a common law right to withdraw or withhold life-sustaining treatment from an incompetent patient must be measured from a consideration of the nature of the right a competent patient possesses to accept or reject medical care. The right of a competent adult to refuse medical treatment is anchored in the common law doctrine which requires the patient’s informed consent to the administration of medical care. The doctrine of informed consent developed as a means of protecting an individual’s right to self-determination and personal independence in making decisions of great personal importance. Under the doctrine, a physician may be held civilly liable if a medical procedure is performed upon a competent adult patient without the patient’s consent. (In re Storar (1981), 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266.) The doctrine of informed consent presupposes that the patient has the information necessary to make an informed decision and is able to evaluate that information. Thus, to make an “informed” decision to accept or refuse treatment, the patient must have a full understanding of the nature of the illness and the prognosis, the information necessary to evaluate the risks and benefits of all the available treatment options, and the competency to make a reasoned and voluntary decision. (In re Conroy (1985), 98 N.J. 321, 347, 486 A.2d 1209, 1222, quoting Wanzer, Adelstein, Cranford, Federman, Hook, Moertel, Safar, Stone, Taussig & Van Eys, The Physician’s Responsibility Toward Hopelessly Ill Patients, 310 New Eng. J. Med. 955, 957 (1984).) In the absence of these prerequisites, a person cannot make an informed decision to consent to or to refuse a particular form of treatment. In re Conroy, 98 N.J. at 347, 486 A.2d at 1222; Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408.

The majority simply assumes, without discussion, that the common law right to refuse medical treatment applies to all persons, whether or not they are competent to exercise that right. In doing so, the majority fails to consider fundamental distinctions between competent and incompetent patients. It must be said that the majority of courts that have held as the majority does here have ignored this troublesome problem and have said that the common law right to refuse life-sustaining treatment survives becoming incompetent. (See, e.g., Superintendent of Belchertown State School v. Saikewicz (1977), 373 Mass. 728, 741, 370 N.E.2d 417, 423; Jobes, 108 N.J. at 426-27, 529 A.2d at 451; Gardner, 534 A.2d at 952.) There are constitutional scholars, however, who have rejected the notion that the right to refuse treatment applies equally to competent and incompetent patients.

For example, Professor Laurence Tribe observed that conceptual and practical difficulties arise when one attributes “rights” to patients who are irreversibly comatose or in a chronic vegetative state. He observed that, while such patients are not dead in any legal sense, it is difficult to give content to the notion that they have rights in the face of the recognition that they cannot make decisions about how to exercise such rights. L. Tribe, American Constitutional Law 936-37 (1978).

Tribe, of course, was not suggesting that incompetent persons do not have any rights. He simply recognized what is the basic flaw in the view of the majority and other courts that have spoken of the incompetent patient’s “right” to refuse life-sustaining treatment. In the effort to support the incompetent patient’s “right to choose” to refuse life-sustaining treatment, the majority does not consider that the right to refuse treatment is rooted in and dependent upon the patient’s capacity for informed decision, which an incompetent patient, of course, does not possess.

Undaunted by conceptual and practical difficulties which arise when one speaks of a “right to refuse medical care” in the case of incompetent persons, the majority simply assumes that incompetent patients must be considered the same as competent patients in regard to the right to refuse life-sustaining treatment. As incompetent patients are incapable of making a choice or giving consent, the majority would confer the power to choose and consent to third parties through the fiction of substituted consent.

The Quinlan court was the first to authorize third persons to terminate life-sustaining treatment from an incompetent ward under the notion of substituted consent. (In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647.) There, 22-year-old Karen Ann Quinlan was living in a “non-cognitive, vegetative” state. (Quinlan, 70 N.J. at 41, 355 A.2d at 664.) Karen’s father sought judicial permission to disconnect the respirator that assisted his daughter’s breathing, making several different constitutional arguments in support of the asked-for relief. The court, stating that the right to refuse treatment was premised on Karen’s constitutional right of privacy, held that Karen had the right to decide to terminate her vegetative existence. Quinlan, 70 N.J. at 41, 355 A.2d 664.

Regarding Karen’s inability to decide whether to exercise this right, the court stated:

“The only practical way to prevent destruction of the right is to permit the guardian and family of Karen to render their best judgment *** as to whether she would exercise it in these circumstances.” 70 N.J. at 41, 355 A.2d at 664.

The court authorized her father to direct the removal of life-support systems. (Quinlan, 70 N.J. at 42, 355 A.2d at 664.) Although her physicians believed that Karen could not survive without the respirator, she lived for nine years after it had been disconnected. (Artificial nutrition and hydration were not removed. When asked if he wanted Karen’s nasogastric feeding tube removed, her father replied, “Oh no, that is her nourishment.” Ramsey, Prolonged, Dying: Not Medically Indicated, 6 Hastings Cent. Rep. 14 (1976).)

The court’s constitutional analysis, as well as its use of the substituted-judgment and substituted-consent doctrines, have been strongly criticized. Professor Tribe has suggested that, rather than effectuating Karen Quinlan’s “rights,” the court gave constitutional status to her family’s desire to be rid of their torment and the interest of society in freeing medical decisionmakers from blind adherence to a practice of keeping vegetative persons alive out of fear of prosecution. L. Tribe, American Constitutional Law 936-37 (1978).

Professor Yale Kamisar’s criticism of the Quinlan decision focused upon the court’s invocation of the substituted-consent doctrine. He has suggested that Quinlan provided “euthanasia proponents with something that has eluded them for decades — the bridge between voluntary and involuntary euthanasia, between the ‘right to die’ and the ‘right to kill.’ ” (Kamisar, A Life Not (or No Longer) Worth Living: Are We Deciding the Issue Without Facing It? (Nov. 10, 1977), Mitchell Lecture delivered at the State University of New York at Buffalo, quoted in Note, Due Process, Privacy & the Path of Progress, 1979 U. Ill. L.F. 469, 518 n.239.) Kamisar also criticized the court’s willingness to guess at what Karen Quinlan would want if she could decide for herself. “What the court is really saying, I believe, is that if Karen’s constitutional right of privacy includes a right to elect to die and that she presently lacks the capacity to choose and we cannot discern from her previous statement how she as a particular individual would have chosen, we may surmise that she would have chosen to die because we presume that the great majority of those in her situation would so choose.” (Emphasis in original.) (1979 U. Ill. L.E at 518 n.238.) Kamisar continues: “If, in the absence of hard evidence about a patient’s wishes when actually put in a Quinlan-type situation, a court is to indulge in presumptions, one would think that it would presume just the opposite of what it did in Quinlan.” (Emphasis in original.) 1979 U. Ill. L.F. at 518 n.238.

Courts permitting, despite criticism of Quinlan, a third party to exercise the right to refuse life-sustaining treatment on behalf of the incompetent ward have adopted one of three grounds to define when the third party may exercise a patient’s right to refuse treatment: the best interests, the substituted judgment or the subjective intent of the patient. The majority opinion explains and here adopts the substituted-judgment ground.

The substituted-judgment approach is appealing because it purports to preserve the incompetent patient’s personal right of self-determination and bodily integrity. The analysis, however, is based upon a legal fiction: that the incompetent patient actually chooses to refuse life-sustaining treatment, and the court and litigants simply effectuate or carry out the patient’s intent. Responsibility for the decision to terminate treatment rests with the incompetent patient, while the court and guardian become blameless, choiceless assistants. Weber, Substituted Judgment Doctrine: A Critical Analysis, 1 Issues in L. & Med. 131, 137 (1985).

The majority discusses the termination of life-sustaining treatment under the substituted-judgment approach as though the surrogate will simply effectuate the incompetent patient’s intent. Typically, however, there is no direct evidence that the incompetent patient intended to refuse the treatment. Instead, the majority must presume that a surrogate decisionmaker will acquire such intimate knowledge of the patient’s basic views or philosophy that the surrogate can formulate a reliable opinion regarding how the incompetent would have reacted to his current predicament even if the incompetent had never previously expressed views upon the subject. (Jobes, 108 N.J. at 438, 529 A.2d at 457.) The majority also seemingly presumes that the choice made by a surrogate is equivalent to the choice the incompetent patient would make if competent. In doing so, the majority ignores the inherent differences between choices made by individuals who are competent and choices made for individuals who are not. Because Mrs. Longeway’s incompetent condition makes it impossible to definitively ascertain her present intent toward the withdrawal of nutrition and hydration, allowing a third party to make a substituted judgment on her behalf may violate, rather than exercise, her right to self-determination and to control her own body. As the court in Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408, which is now before the Supreme Court, noted, “courts seldom indulge the temptation to determine whether one person’s autonomy and self-determination can be exercised by another, though the very terms seem to indicate that these rights are not alienable, unless so determined by the person for whom they are exercised.” (Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408, 416 n.11.) By claiming to preserve the incompetent patient’s right to self-determination, the majority is relieved of the burden of acknowledging that it is actually allowing third parties to decide how that right shall be exercised.

Too, risk of error is inherent under the “substituted-judgment” approach, because the surrogate, and ultimately the court that authorizes the termination of nutrition and hydration, must attempt to ascertain the patient’s intent from sources external to the incompetent individual. A surrogate and the court must piece together any available testimony from relatives and other sources to construct a persona. They say that that image, if you will, then represents and decides for the incompetent person. The entire effort is more of an exercise in fictional characterization than it is an execution of the patient’s intent and rights. (Weber, Substituted Judgment Doctrine: A Critical Analysis, 1 Issues in L. & Med. 131, 137 (1985).) I believe it to be incongruous to say, as the majority does, that the “guardian must substitute her judgment for that of Longeway’s, based upon other clear and convincing evidence of Longeway’s intent.” (133 Ill. 2d at 50-51.) If there were clear and convincing evidence of an incompetent’s intent, a surrogate’s substituted intent and judgment would not be necessary. It has been observed that the substituted-judgment approach “allows the truly involuntary to be declared voluntary, thus bypassing constitutional, ethical and moral questions, and avoiding the violation of taboos. Third party consent is a miraculous creation of the law — adroit, flexible, and useful in covering the unseemly reality of conflict with the patina of cooperation.” Price & Burt, Sterilization, State Action, and the Concept of Consent, Law & Psychology Rev. 58 (Spring 1975).

The majority assumes that the substituted judgment to terminate nutrition and hydration will be made, as it will be here, by the patient’s loving family. Many elderly persons, however, have few or no surviving relatives or friends and are socially isolated. Too, considerations other than the patient’s suggested wish, such as the quality of the patient’s life, may intrude upon the decisionmaking. Under substituted judgment, a surrogate may decide that the incompetent patient would not want to live in his present condition. The surrogate arrives at that decision, however, by placing himself in the position of the incompetent patient and then using his own subjective standard and personal value system to judge the incompetent’s quality of life. Such a determination is obviously fraught with the danger that the surrogate’s decision will reflect the surrogate’s value system (or a mistaken view of the incompetent’s value system) and be opposed to the patient’s personal value system. Because the surrogate is judging the quality of the patient’s life on the surrogate’s own terms, there is always the risk that the surrogate will allow the patient to die simply because he is incompetent. (Note, Live or Let Die; Who Decides an Incompetent’s Fate? In re Storar and In re Eichner, 1982 B.Y.U. L. Rev. 387, 393.) This concern prompted the New York Court of Appeals to reject the “substituted judgment” approach as “inconsistent with our fundamental commitment to the notion that no person or court should substitute its judgment as to what would be an acceptable quality of life for another.” (In re O’Connor (1988), 72 N.Y.2d 517, 530, 531 N.E.2d 607, 613, 534 N.Y.S.2d 886, 892.) Allowing a guardian to substitute his judgment for that of an incompetent ward creates a grave risk that due to the guardian’s own personal values, biases, or mistaken beliefs concerning the ward, there will be wards who will undergo the death described in frightening terms in the majority opinion, without ever having had such an intent to do so. It is fully understandable that the inherent risks of and the consequences of mistake which necessarily accompany the decision to terminate another person’s life-sustaining treatment and take his life have led thoughtful commentators to reject the notion of substituted judgment. See L. Tribe, American Constitutional Law 1369 (1978); Kamisar, Some Non-Religious Views Against Proposed “Mercy-Killing” Legislation, 42 Minn. L. Rev. 969 (1958).

JUSTICE CLARK,

also dissenting:

I must emphatically and categorically dissent from what I view as this court’s sad foray into the legislative realm, a realm that most certainly does not belong to the members of the judiciary. Although the majority recognizes that the “legislature is the appropriate forum for the ultimate resolution of the questions surrounding the right to die” (133 Ill. 2d at 53), they nevertheless refuse to exercise the proper restraint. Rather, they plunge heedlessly and needlessly into the abysmal abyss created by those who attempt to too quickly solve what they perceive to be life’s tragedies.

The majority’s venture into legislation making is both dangerous and, in this case, utterly unnecessary. Based on even the majority’s description of Longeway’s condition (i.e., “opens her eyes and responds to verbal commands and painful stimuli” (133 Ill. 2d at 36)), under the majority’s five-part test, as I read it, a test designed to potentially permit withdrawal of the nasogastric tube, it would seem that Mrs. Longeway does not qualify for withdrawal. Thus the majority has fashioned a remedy that this court and the residents of this State will be required to apply, but which, in all probability, does not do what the majority set out to do: “help this poor patient.”

The majority justifies this step into legislation making by implying that the legislature has not to date taken any initiative on this question. The majority contends that “[w]e cannot defer to the legislature for some possible future expression from that body as to public policy, which may or may not be forthcoming.” (Emphasis added.) (133 Ill. 2d at 55.) I contend, however, that the Illinois legislature has developed a public policy regarding the “right to die” issue; rather than recognize and adhere to that policy, however, the majority of this court would instead jump on the bandwagon of “consensus” (133 Ill. 2d at 42). As I will attempt to illustrate, in Illinois this bandwagon is on treacherously shaky ground.

The majority bases its decision that there exists a right to refuse “life-sustaining medical treatment in our State’s common law and in provisions of the Illinois Probate Act.” (133 Ill. 2d at 44.) As the majority properly notes, Longeway did not execute a living will (see Ill. Rev. Stat. 1987, ch. 110½, par. 701 et seq.) or a health care power of attorney (see Ill. Rev. Stat. 1987, ch. IIOV2, par. 804 — 1 et seq.); therefore this case does not, strictly speaking, involve application of these statutory provisions. It is well accepted, however, that when legislation and the common law address the same issue (here that issue is the right to refuse treatment, or right to die), “legislation will govern because it is the latest expression of the law.” (2A N. Singer, Sutherland on Statutory Construction §50.01, at 421 (4th ed. 1984).) Additionally well settled is the concept that ‘ ‘ [constitutionally valid legislation that is enacted in response to current demands serves as a valuable evidentiary source of public policy.” (2A N. Singer, Sutherland on Statutory Construction §56.02, at 629 (4th ed. 1984).) Both the Living Will Act and the Health Care Power of Attorney Act provide a fertile “source of public policy”; further development and refinement of that public policy ought to be left to the able hands of the legislators, not imposed by the judiciary.

That this issue should be addressed by the legislature as an elected representative body has been recognized not only by this court (133 Ill. 2d at 52-53) but has been advocated in numerous cases and commentaries. (In re Conroy (1985), 98 N.J. 321, 486 A.2d 1209; In re Jobes (1987), 108 N.J. 394, 529 A.2d 434; In re Guardianship of Grant (1987), 109 Wash. 2d 545, 747 P.2d 445; In re O’Connor (1988), 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 8