Refusing Medical Treatment Is Not Suicide, Wisconsin

Justice Prosser, one of the seven Justices on the Wisconsin Supreme
Court, recently published a concurring opinion with rather troubling
language.  Wisconsin already has some
pretty archaic and patient-unfriendly law (and here) regarding end-of-life decision
making.  But I was honestly surprised to
read what Justice Prosser wrote.

For context, the case involved a 15-year-old Jehovah’s Witness, Shelia,
who was transfused over both her and her parent’s objections.  Shelia asked the Court to adopt the mature
minor doctrine.  But the Court dismissed
her appeal as moot, both because the temporary guardianship order that
authorized the transfusions had expired and because Shelia had already received
the transfusions.  Since the Court voted
not to reach the merits of the case, most everything that Justice Prosser wrote
about healthcare decision making was dicta. 
(In a piece forthcoming in the Journal of Bioethical Inquiry, I am
attacking the Court’s refusal to reach the merits of the appeal.)

Justice Prosser concluded that Shelia’s refusal of life-saving blood
transfusions, had it been honored, would have been “suicide.”  And Justice Prosser further suggested that clinicians
who complied with such a decision would violate Wisconsin’s criminal
prohibition of “assisted suicide.”  Here
is a brief excerpt: 

¶32 Wisconsin law provides that, "[w]hoever with intent that
another take his or her own life assists such person to commit suicide is
guilty of a Class H felony." Wis. Stat. § 940.12 (emphasis added). At
first glance, this statute would not appear to be implicated in a situation
where a minor is permitted to refuse blood transfusions. In such a case, a potential
defendant would not normally have the purpose that the minor commit suicide.
However, the phrase "with intent that" also means a defendant was
aware that his or her conduct was practically certain to cause (the minor) to
commit suicide.

 ¶33 What is suicide? On this point, Sheila's doctors did not believe that
she had a terminal illness. Assuming that she is still alive, her doctors were
correct. But Sheila's attending physician predicted that she would die without
blood transfusions. There was no alternative treatment to preserve her life.
Refusing to agree to the only known treatment to save one's life is suicidal
unless a person's condition is terminal. 
Facilitating suicidal conduct in these circumstances is practically
certain to cause the person's death.

Yes, there may remain some lingering questions: (a) about the legality
of refusing oral food and fluids, (b) about the legality of honoring an OHDNR
after a suicide attempt, and (c) about the deactivation of ICDs.  But there has been longstanding legal,
ethical, and medical consensus that mere passive withholding or withdrawing of
even lifesaving medical treatment (like blood transfusions) does not constitute
“suicide.”