Judicial Rulings

Rules on right to die

The Illinois Supreme Court, in a 4-2 split decision filed November 13, has issued guidelines on the withdrawal of artificial nutrition and hydration from terminally ill but incompetent patients.

The patient in question is not clinically brain dead but will never regain consciousness. Since she can neither chew nor swallow she receives food and water via a surgically implanted tube. She has never made a living will under the Living Will Act (see Illinois Revised Statutes 1987, ch. 110 1/2, sec. 701 et seq.) nor executed a health care power of attorney under the Powers of Attorney for Health Care Act (see Ill.Rev. Stat. 1987, ch. 110 1/2, sec. 804-1 et seq.). Her guardian daughter's petition to remove the tube was dismissed by the DuPage County circuit court.

In this case a problem arises because '' [f]ood and water are emotionally symbolic in that food and water are basic necessities of life." The Living Will Act regards artificial nutrition and hydration as death-delaying procedures (sec. 702(d)), while the Powers of Attorney for Health Care Law considers them health care (sec. 804-10(a), (b)(l)). The court said, "Termination of these intrusive procedures does not deprive the patient of life; rather, the inability to chew or swallow ... is viewed as the ultimate agent of death." The court cited decisions in other states as a consensus that artificial nutrition and hydration constitute medical treatment.

A competent patient may refuse treatment under common law requirements of consent to receive treatment. The court held that a guardian could make this decision for an incompetent patient under implications of the Probate Act, which permit a guardian to provide for the ward's "support, care, comfort, health . . . and maintenance" (see Ill. Rev. Stat. 1987, ch. 110 1/2, sec. 11a-17), and another in the Powers of Attorney Act which includes termination of artificially administered food and water (III. Rev. Stat. 1987.ch. 110 1/2, sec. 804-10).

The court set these guidelines. The incompetent patient must be terminally ill. The patient "must be diagnosed as irreversibly comatose or in a persistently vegetative state" by the attending physician and two consulting physicians. The guardian must obtain a court order for the withdrawal; the guardian must show clear and convincing proof of the patient's intent, based on establishment of the patient's value system.

The court said. "The judiciary is viewed as ill-suited to resolve these situations," and added that the legislature could alter the guidelines since they are based in common law rather than constitutional guarantees. Justice Howard C. Ryan wrote for the majority in In re Longeway (Docket No. 67318). Justice Horace L. Calvo did not participate, while Justices William G. Clark and Daniel P. Ward wrote vigorous dissents. Both felt that the court here moved into a legislative area, that the decision might imply approval of euthanasia in state policy and that the introduction in the last session of House Bill 4094 foreshadowed eventual legislation barring, with certain exceptions, termination of artificial nutrition and hydration. Clark reviewed the applicable decisions in other states and pointed out that all were close split decisions, rather than a consensus.

Rules on 'mature minor' on right to die

The common law right to refuse treatment cited in Longeway was also at the heart of the high court's November 13 decision granting this right to mature minors. In this case a patient with life-threatening leukemia wished to refuse needed blood transfusions on grounds of her beliefs as a Jehovah's Witness. She was supported by her mother.

The patient was just six months shy of her 18th birthday. The circuit court appointed a guardian to consent to the transfusions, which were administered. For this reason and because the plaintiff has since turned 18, the case is moot, but the court issued a decision based on the public interest exception, which includes the likelihood of the question's future recurrence. In 1952 and 1965 the court made decisions concerning administration of transfusions to Jehovah's Witnesses, but this is the first case involving the decision of a mature minor.

The court said, "Although the age of majority in Illinois is 18, that age is not an impenetrable barrier that magically precludes a minor from possessing and exercising certain rights normally associated with adulthood." The court summarized Illinois statutes granting specific medical decisions to minors and those statutes that treat minors as adults. It concluded, "We see no reason why this right of dominion over one's own person should not extend to mature minors," on condition that a judge "determine whether a minor is mature enough to make health care decisions on her own." The judge must find clear and convincing proof "that the minor is mature enough to appreciate the consequences of her actions . . . and to exercise the judgment of an adult.'' Opposition of a parent or guardian would weigh heavily against the decision.

Justice Howard Ryan wrote for the majority in In re E.G. (Docket No. 66089), while Justices William G. Clark and Daniel P. Ward wrote dissenting opinions. Ward pointed out that this case is a matter of saving life rather than maintaining health and "in a host of matters of far lesser importance it would not be held that a minor however mature could satisfy a requirement of being of legal age." Clark disagreed with the decision to take a moot case that might be of first impression in the whole country.

Asbetos companies liable

Because the Asbestos Abatement Act (see III. Rev. Stat. 1987, ch. 122, sec. 1401 etseq.) requires schools to remove asbetos-containing material (ACM), school districts can claim damages against manufacturers. On October 25 the high court handed down its decision in a suit originally brought by several school districts against 78 named defendants.

Cook County circuit court had dismissed the case but the appeals court had reversed on a number of grounds, central to which were considerations of strict liability and negligence. The high court observed that "the nature of the 'defect' and 'damage' caused by asbestos is unique from most of the cases we have addressed." Since it has been determined that ACM can become persistently airborne and that it is potentially harmful, and since the statute requires its removal, the court held that buildings containing it may be found to be damaged. It ruled that "a sudden and calamitous act" is not essential to damage claims in tort, but rather "whether the product has an unreasonably dangerous defect and whether the defect caused the property damage alleged."

The court ruled that ACM was still to be regarded as a product even though installed in a building and that a jury would have to determine "the danger point of asbestos exposure." On the claim of negligent misrepresentation, the court ruled that grounds for a claim exist but that "the plaintiffs have significant hurdles to overcome upon remand."

The decision in Board of Education v. A, C and S, Inc. (131 Ill 2d, 428) was unanimous. Justice Howard C. Ryan wrote the opinion. Justices William G. Clark and Daniel P. Ward did not participate.

Revealing bargaining strategies limited

Must employer or union bargaining teams reveal strategy to each other? An October 25 decision by the state Supreme Court allows some disclosure under controlled conditions.

The Homer Education Association and Homer Community Consolidated School District No. 208 filed charges of bad-faith bargaining against each other before the Illinois Educational Labor Relations Board (IELRB). The association requested information on the district's bargaining strategies, and the IELRB denied the district's claim that such material is privileged. The circuit court ordered production of the material, but the Supreme Court sustained the appellate ruling that such material is pro-

January 1990/Illinois Issues/27

Judicial Rulings

tected by a qualified privilege, i.e., that some supervisory body must determine what portions, if any, are germane to the hearing and subject to disclosure.

Privileged communications exist in rare instances when confidentiality is essential to the relation between the communicating parties and where injury to the relation would be greater than the benefit gained by revelation. Collective bargaining strategy meetings of public bodies are exempt from disclosure under the Open Meetings Act (see Ill. Rev. Stat. 1987, ch. 102, sec. 42) and the Freedom of Information Act (see Illl. Rev. Stat. 1987, ch. 116, sec. 207(m), (q)). The matter is not addressed specifically in the Illinois Educational Labor Relations Act (see Ill. Rev. Stat. 1987, ch. 48, sec. 1701 et seq.), but the act does bar from union membership "confidential employees" who would be privy to collective bargaining strategy. Because the court found "a strong public policy protecting the confidentiality of labor-negotiating strategy sessions," it ruled that "some type of privilege is necessary to prevent disclosure of either party's negotiating strategy during an unfair labor practice proceeding before the Illinois Educational Labor Relations Board."

The court said that the circuit court would be more appropriate than the IELRB to decide what information should be disclosed, since the board would have to disregard privileged information that it had seen in the disclosure decision when settling the central dispute. The circuit court would be guided in its decision by principles stated in the federal case Equal Employment Opportunity Comm'n v. University of Notre Dame Du Lac ((7th Cir. 1983), 715 F.2d331, 338).

The majority opinion in Illinois Educational Labor Relations Board v. Homer Community Consolidated District No. 208 (Docket No. 66250) was written by Justice Howard C. Ryan. Justice William G. Clark wrote a dissent in which he was joined by Justice Horace L. Calvo. Citing the authority given other administrative boards to make such decisions, Clark termed this an "unprecedented step" and said that "it smacks of judicial snobbery."

More on reciprocity

Rule 705, adopted in April 1989, was amended by the Illinois Supreme Court on October 25. The change restored an earlier requirement that out-of-state attorneys wishing to practice in Illinois satisfy the State Board of Law Examiners of their intention to "engage in the active and continuous practice of law in Illinois" and provided a lengthy definition of such practice. The April version's requirement that attorneys conform to higher admission standards if such standards were in force in the jurisdicition from which they were coming was deleted.

F. Mark Siebert

28/January 1990/Illinois Issues