On November 6, 2001, the Michigan Court of Appeals issued a very lengthy opinion in the case of In re AMB. This decision addressed a number of procedural irregularities and judicial failures which led up to a premature decision to remove a disabled infant from life support at Children's Hospital of Michigan in early 1999. While it is possible, perhaps even likely, that this decision would ultimately have been the proper one to make, legally and ethically, the court soundly rejected the procedures which were followed by the parties and by a referee of the Family Court under the circumstances in which this case was presented.

The underlying facts are particularly heartbreaking. The infant appears to have been conceived in the course of an incestuous relationship between a man, identified only as "JB", and his 17-year-old mentally disabled stepdaughter, identified as "KB". The infant was born prematurely and with a number of disabilities, including the following as described by the court:

"Baby Allison's heart was missing a septum, two of her heart valves
were deformed, her aorta was very small, and the size of her heart
had forced her left lung to collapse partially. Baby Allison had
hydrocephaly and other brain abnormalities suggesting corpus
callosum agenesis, as well as malformed hip joints and a possible
problem with her intestines."

An attorney by the name of Ladd was appointed by the Family Court to serve as attorney for the child.

The case had had a long and complicated procedural history at the appellate level, with a significant degree of uncertainty as to whether the courts could or should make a ruling, and as to whether anyone had legal authority to act for the interests of the deceased infant, in the absence of the filing of probate proceedings and the appointment of a personal representative. These issues will not be described here in detail except to note that the Supreme Court ultimately ruled that the appeal should be permitted, in view of the importance of the issues involved, and that Ladd would be permitted to act as attorney for the interests of the now-deceased child. The Supreme Court wished to ensure that the case be presented and decided rather than consigned to the pile of cases that are not decided and are forgotten because the outcome was now irreversible.

The procedural status of the proceedings before the Family Court is important. A caseworker with the Michigan Family Independence Agency (FIA) filed two petitions with the Family Court. The first was filed on February 11, 1999, and requested that the court take temporary custody of the infant and provide consent to needed medical treatment, in view of the incestuous nature of the conception and of the mother's limited intelligence and ability to care for the child

A hearing was held before a referee, without a judge being involved, and the petition was granted. Ladd was present and participated.

An amended petition was filed on February 15, this time also requesting that the court authorize or direct the termination of life support for the infant, based on the belief of the treating neonatologist that such a step was in the child's best interests. The issues on which the appellate decisions rested arise from the steps taken at the hearing on this second petition. A quick sketch of the procedural mistakes is:

• No notice of the hearing was given to the mother or to the father.
  
• No notice of the hearing was given to Ladd.
  
• The child's interest was purportedly represented by "emergency house counsel" who was ill-prepared for the hearing.
  
• The decision was made by a referee who had no legal authority to render a decision.
• There was no evidence offered regarding the alleged incompetency of the mother.
• The referee never saw or spoke to the mother, and indeed none of the witnesses (except the neonatologist) saw or spoke to the mother.
• The written decision of the referee was identified as an "order", despite the fact that the court rules do not permit the referee to make anything more than a finding and recommendation, for later decision by a judge.
• The name of a judge was affixed to the file in such a fashion that it appeared to the appeals court that the referee may simply have stamped his name to suggest that a judge had reviewed his decision as required under the court rules when he had not in fact done so.
  
• The "order" so resulting was to be automatically delayed for seven days in order to give the parties a chance to pursue any appropriate appellate remedies.
  
• Instead of waiting for the seven day period to elapse, the medical personnel at Children's Hospital disconnected life support immediately.

On appeal, a large number of issues were presented and argued by Ladd, acting for the interests of the deceased infant.

The Court of Appeals opinion in this case is quite lengthy, and carefully addresses each of the arguments and assignments of error made by Ladd. The Court should be commended for its careful and thoughtful analysis of each of these issues.

Despite the fact that nothing could be done for this infant, the court decided to address and resolve "the widest range of issues", rather than avoiding any as moot (made irrelevant or unnecessary by the passage of time), in order to ensure that the lower courts have guidance as to the steps to be taken to avoid this situation in the future.

As an initial matter, the Court held that the Family Court did have the jurisdiction to consider and decide issues relating to the "substituted decision-making" which is necessary for the proper exercise of a patient's right to obtain medical information and make personal decisions as to the provision or withholding of consent to treatment, in a situation in which the patient cannot make that decision for herself. While that decision would normally be made by a parent, acting for and in the best interests of an infant, the incapacity of the parent is one of the circumstances that would justify the involvement of the Family Court.

The Court rejected Ladd's position that the withdrawal of medical care is not within the Family Court's jurisdiction. The Court found that the jurisdiction to make decisions regarding the provision of medical care includes the jurisdiction to make decisions regarding cessation or termination of medical care.

Rights of the parents

This particular ruling deserves some comment. The Court did not decide that the father who had begotten a child as a result of sexual abuse of a minor had a right to make decisions for the infant. The only thing decided by the court was that the father's status as a parent gave him a right to be notified of the pending hearing and an opportunity to participate. Both the hearing referee and the Court of Appeals observed (although perhaps only implicitly in the case of the referee) that the criminal nature of the circumstances of the child's birth would likely result in a judicial determination that the father's otherwise existing right to act for and on behalf of his child would be revoked. That step (termination of parental rights) itself requires a hearing, however, with notice to the parent whose rights are to be affected and with an opportunity for that parent to be heard.

The right to notice is not a grant of a substantive right. It is procedural in nature. The right to notice is essential if a substantive right is to be limited or removed.

The court never held a dispositional hearing, which would have been the next step under the Juvenile Code after the referee's preliminary hearing.

The court rejected Ladd's claim that the withdrawal of medical treatment constitutes "child neglect" under the federal Child Abuse Prevention and Treatment and Adoption Reform Act. The Court found that withdrawing medical treatment after consultation with medical personnel is not the same as withholding needed medical treatment, under that statute.

The court also rejected the claim that the order to withdraw baby Allison's life support violated her right to have her emergency medical condition stabilized under the Emergency Medical Treatment and Active Labor Act (EMTALA). The court found that EMTALA does not abrogate the individual's right to consent to medical treatment, and does not affect the authority of the courts to provide procedures for substituted consent in a proper case.

The court found no violation of the Americans with Disabilities Act or the cognate Michigan statute, the Persons With Disabilities Civil Rights Act.

Procedural protections

• A determination must be made that the patient is not competent to make his own decision.
  
• If he is not, a surrogate must be designated.
  
• A second physician, independent of the treating physician, must provide an opinion as to the diagnosis and prognosis.
  
• A clear and convincing standard must be applied.
  
• The affected parties must be given notice and an opportunity to participate.
• The decision must be made by a judge, not a referee.

The Court also agreed that the Family Court should have appointed a guardian ad litem to act on behalf of the patient in these circumstances, although it did not accept Ladd's argument that that step is required in every case.

A standard of clear and convincing evidence is needed, the Court ruled, given the fact that there is no effective remedy for an erroneous ruling by a court allowing the withdrawal of life support. Although there may be some confusion, it appears that the Court determined that this higher standard should apply to both the determination of incompetence on the part of the parent (due to the fundamental liberty interests in raising one's own child) and the determination of whether the withdrawal of life support is in the best interests of the child. (The same standard applies to the determination of whether an incompetent but previously competent adult had expressed his or her wishes with regard to this issue, under the previous decisions in In re Rosebush and In re Martin.)

As part of that same standard, the Court stated that the Family Court should have made an inquiry as to the views and positions of other physicians treating the child. The Family Court in this case accepted testimony from a treating neonatologist, but did not inquire into the views of other treaters.

This part of the Court's decision could be questioned, since there is typically one physician who is regarded as the "attending physician", and she is regarded medically as the physician in charge of the patient's care. The reality is, however, that consultants and other physicians participating in the patient's care may have different views on the need for and the expected outcome of medical treatments, and it is at least helpful for the court to have the benefit of those additional views as well. The Family Court would have the ultimate responsibility to resolve any differences and to determine which opinions should be given more weight than others.

As noted above, the court ruled that due process required that the parents be notified and given an opportunity to participate. The court recognized that there might be some circumstances in which the Family Court might determine that it should act without these due process safeguards, but it noted that this would be a rare exception to the general rule.

Given the statutory limitations on the authority of a referee, and the need for strong judicial protection of life, the court agreed that any decision by the Family Court must be made by a judge, and not delegated to a referee. The referee is authorized only to take testimony and to make a recommendation to the judge of the Family Court, and has no authority to enter an order himself. The judge of the Family Court never held a review hearing for the purpose of passing on the referee's decision.

In response to an allegation that the "emergency house counsel" had not effectively represented the interests of the infant, the Court did engage in an inquiry on this issue. This perhaps marks the first time that a court has ruled on the issue of effective assistance of counsel outside of the arena of appointed counsel in criminal cases. The courts have typically not entertained such questions in civil cases, because the Sixth Amendment guarantee of the assistance of counsel is limited to criminal proceedings. This obligation was added in this case, again, due to the importance of the state interest in protecting the life and liberty of persons under the protection of the court.

The court noted that judicial intervention in the decisions of life and death is disfavored as a matter of public policy. This principle arises from the fact that these decisions are typically reserved to the individual, or to a family surrogate if the individual is unable to act for himself. The principles of privacy and personal autonomy which are recognized both under Federal constitutional law and under the Michigan Constitution stand precisely for the principle that the individual or his family should be able to make profoundly personal decisions without the interference of state agencies or courts.

The opinion ends with an anecdote describing the daughter of Charles DeGaulle, as follows:

"General Charles de Gaulle’s daughter, Anne, was born retarded. She was unable to feed or clothe herself, or speak well. De Gaulle was a notoriously aristocratic and aloof man, but for all his daughter’s life he spent hours 'playing simple games with her and at night he would hold her hand until she fell asleep.' In 1948, Anne died after she contracted a lung ailment. At his daughter’s funeral, de Gaulle turned to his wife and said, 'Now at last our child is just like all children.'

"It almost certainly did not occur to Charles de Gaulle that his daughter should be put to death for her disabilities. We again observe that we can fashion no remedy that will unmake the decisions that led to baby Allison’s death; now she is, in the true meaning of de Gaulle’s heartbreaking phrase, just like all children. Moreover, we do not hold that life support can never be withheld or removed from a desperately ill and suffering child, although we acknowledge that linking the removal of life support to the child’s best interests is, on the surface, enormously jarring."

The reference to a child being "put to death for her disabilities" is somewhat disturbing. It suggests that the Court of Appeals was concerned that there may have been some monetary motivation behind the actions of the FIA case worker in initiating action in the Family Court. Lying just below the surface of the water, it would seem, was the court's discomfort with the fact that it was the Family Independence Agency which initiated proceedings in the Family Court. It is perhaps no coincidence the continuation of life support efforts in this case would have been be enormously costly to the FIA, as the agency responsible for the administration of social services in this state.

The Court did not suggest that the termination of support is never justifiable in these circumstances. Certainly its lengthy consideration of the details of the issues presented, and its emphasis on the need for due process, a high evidentiary standard, and the need for zealous advocacy on behalf of the infant was based upon a concern that any judicial decision which leads to the withdrawal of life support must be very carefully made, with full consideration of all of the factors, with notice to all concerned and an opportunity to be heard, and with due concern for the state's strong interest in preserving life.

The acknowledgement that "linking the removal of life support to the child’s best interests is, on the surface, enormously jarring" represents the court's recognition that these are difficult issues which are of great importance to our society and to our concept of individual liberty, and that the courts must be sure to guard against the possibility that less than benign motivations may sometimes be at work when these issues are presented for adjudication.

The decision by a parent to withhold or withdraw from an innocent infant the interventions made available by modern medical science is one of the most gut-wrenching decisions that that parent will ever have to make. The same determination, in the rare circumstance when it should be made by a court, at the instance of a state agency and bypassing an allegedly incompetent parent, would be one of the most serious and most meaningful decisions that a trial-level judge could ever be asked to make. Considerations of judicial restraint demand that the entire issue be handled carefully, and with exquisite sensitivity to the profound issues involved.

The court's extremely detailed examination of the issue, its thoughtful consideration of the factors involved, the procedural safeguards it required, and its strong condemnation of the haphazard way in which these issues were handled by the parties and the Family Court in this case, all reflected its recognition of the solemn and serious nature of this unusual judicial intervention.

M. Sean Fosmire is an attorney with the firm's Marquette office