The celebrated case of Barber v Superior Court (1983) confirmed the utility of “substituted judgment” and also answered the question of physician liability in withholding or withdrawing life support. This case involved two California physicians who performed surgical closure of an ileostomy on Mr. Herbert, who subsequently suffered cardiopulmonary arrest. Five days later they determined that his coma was irreversible and, with the consent of his family, withdrew not only mechanical ventilation but also intravenous fluids and nutrition. Although the family found no fault with this at the time, the physicians were accused of murder by a district attorney After the case was heard by several courts, the California Court of Appeals ruled that the physicians had not failed to perform their duty because they considered it medically futile to continue life support.
The court also declared that because the patient had lost the capacity for selfawareness and social interaction, he could no longer appreciate life. It did not distinguish between removing mechanical ventilation or fluids and ventilation because all were interventions that could either help or hurt the patient. The court thereby discarded the traditional dichotomy between “ordinary” and “extraordinary” forms of treatment as cited in the Saikewicz case and others in favor of a distinction between measures that benefit and burden. Finally, the court held that, without evidence of malevolence, family members are the proper surrogates for an incompetent patient, and that prior judicial approval is not necessary if families and physicians decide to withhold or withdraw support. review
The propriety of withholding or withdrawing any therapies, including fluids and nutrition, from patients who are not likely to benefit from them has been upheld in two recent judicial decisions. In In the Matter of Claire Conroy (1985), the New Jersey Supreme Court ruled that an incompetent patient should be accorded the right to have a nasogastric feeding tube removed either if the patient had previously expressed such a wish, if her values and lifestyle suggested that she would not have wanted feeding continued because it would involve too heavy a burden of pain and suffering, or if the net burden of the patients life following treatment would outweigh the benefits. In the second case, In the Matter of Mary Jobes (1987), the New Jersey Supreme Court again declared that the right of a patient in a persistent vegetative state to refuse treatment can be exercised by the patients family or close friend; that medical institutions cannot refuse to withhold or withdraw support, including enteral feedings; and that physicians and other health care workers involved in decisions to withhold or withdraw therapy will be granted immunity from criminal or civil prosecution if they have acted in good faith.