In re A.C.

ON HEARING EN BANC

TERRY, Associate Judge:

This case comes before the court for the second time. In In re A.C., 533 A.2d 611 (D.C.1987), a three-judge motions division denied a motion to stay an order of the trial court which had authorized a hospital to perform a caesarean section on a dying woman in an effort to save the life of her unborn child. The operation was performed, but both the mother and the child died. A few months later, the court ordered the case heard en banc and vacated the opinion of the motions division. In re A.C., 539 A.2d 203 (D.C.1988). Although the motions division recognized that, as a practical matter, it “decided the entire matter when [it] denied the stay,” 533 A.2d at 613, the en banc court has nevertheless heard the full case on the merits.¹

We are confronted here with two profoundly difficult and complex issues. First, we must determine who has the right to decide the course of medical treatment for a patient who, although near death, is pregnant with a viable fetus. Second, we must establish how that decision should be made if the patient cannot make it for herself — -more specifically, how a court should proceed when faced with a pregnant patient, in extremis, who is apparently incapable of making an informed decision regarding medical care for herself and her fetus. We hold that in virtually all cases the question of what is to be done is to be decided by the patient — the pregnant woman — on behalf of herself and the fetus. If the patient is incompetent or otherwise unable to give an informed consent to a proposed course of medical treatment, then her decision must be ascertained through the procedure known as substituted judgment. Because the trial court did not follow that procedure, we vacate its order and remand the case for further proceedings.²

I

This case came before the trial court when George Washington University Hospital petitioned the emergency judge in chambers for declaratory relief as to how it should treat its patient, A.C., who was close to death from cancer and was twenty-six and one-half weeks pregnant with a viable fetus. After a hearing lasting approximately three hours, which was held at the hospital (though not in A.C.’s room), the court ordered that a caesarean section be performed on A.C. to deliver the fetus. Counsel for A.C. immediately sought a stay in this court, which was unanimously denied by a hastily assembled division of three judges. In re A.C., 533 A.2d 611 (D.C.1987). The caesarean was performed, and a baby girl, L.M.C., was delivered. Tragically, the child died within two and one-half hours, and the mother died two days later.

Counsel for A.C. now maintain that A.C. was competent and that she made an informed choice not to have the caesarean performed. Given this view of the facts, they argue that it was error for the trial court to weigh the state’s interest in preserving the potential life of a viable fetus against A.C.’s interest in having her decision respected. They argue further that, even if the substituted judgment procedure had been followed, the evidence would necessarily show that A.C. would not have wanted the caesarean section. Under either analysis, according to these arguments, the trial court erred in subordinating A.C.’s right to bodily integrity in favor of the state’s interest in potential life. Counsel for the hospital and for L.M.C. contend, on the other hand, that A.C. was incompetent to make her own medical decisions and that, under the substituted judgment procedure, the evidence clearly established that A.C. would have consented to the caesarean. In the alternative, counsel for L.M.C. argues that even if L.M.C.’s interests and those of the state were in conflict with A.C.’s wishes, it was proper for the trial court to balance their interests and resolve the conflict in favor of surgical intervention.

We do not accept any of these arguments because the evidence, realistically viewed, does not support them.

II

A.C. was first diagnosed as suffering from cancer at the age of thirteen. In the ensuing years she underwent major surgery several times, together with multiple radiation treatments and chemotherapy. A.C. married when she was twenty-seven, during a period of remission, and soon thereafter she became pregnant. She was excited about her pregnancy and very much wanted the child. Because of her medical history, she was referred in her fifteenth week of pregnancy to the high-risk pregnancy clinic at George Washington University Hospital.

On Tuesday, June 9, 1987, when A.C. was approximately twenty-five weeks pregnant, she went to the hospital for a scheduled check-up. Because she was experiencing pain in her back and shortness of breath, an x-ray was taken, revealing an apparently inoperable tumor which nearly filled her right lung. On Thursday, June 11, A.C. was admitted to the hospital as a patient. By Friday her condition had temporarily improved, and when asked if she really wanted to have her baby, she replied that she did.

Over the weekend A.C.’s condition worsened considerably. Accordingly, on Monday, June 15, members of the medical staff treating A.C. assembled, along with her family, in A.C.’s room. The doctors then informed her that her illness was terminal, and A.C. agreed to palliative treatment designed to extend her life until at least her twenty-eighth week of pregnancy. The “potential outcome [for] the fetus,” according to the doctors, would be much better at twenty-eight weeks than at twenty-six weeks if it were necessary to “intervene.” A.C. knew that the palliative treatment she had chosen presented some increased risk to the fetus, but she opted for this course both to prolong her life for at least another two weeks and to maintain her own comfort. When asked if she still wanted to have the baby, A.C. was somewhat equivocal, saying “something to the effect of ‘I don’t know, I think so.’ ” As the day moved toward evening, A.C.’s condition grew still worse, and at about 7:00 or 8:00 p.m. she consented to intubation to facilitate her breathing.

The next morning, June 16, the trial court convened a hearing at the hospital in response to the hospital’s request for a declaratory judgment. The court appointed counsel for both A.C. and the fetus, and the District of Columbia was permitted to intervene for the fetus as parens patriae. The court heard testimony on the facts as we have summarized them, and further testimony that at twenty-six and a half weeks the fetus was viable, i.e., capable of sustained life outside of the mother, given artificial aid. A neonatologist, Dr. Maureen Edwards, testified that the chances of survival for a twenty-six-week fetus delivered at the hospital might be as high as eighty percent, but that this particular fetus, because of the mother’s medical history, had only a fifty to sixty percent chance of survival.³ Dr. Edwards estimated that the risk of substantial impairment for the fetus, if it were delivered promptly, would be less than twenty percent. However, she noted that the fetus’ condition was worsening appreciably at a rapid rate, and another doctor — Dr. Alan Weingold, an obstetrician who was one of A.C.’s treating physicians — stated that any delay in delivering the child by caesarean section lessened its chances of survival.

Regarding A.C.’s ability to respond to questioning and her prognosis, Dr. Louis Hamner, another treating obstetrician, testified that A.C. would probably die within twenty-four hours “if absolutely nothing else is done.... As far as her ability to interact, she has been heavily sedated in order to maintain her ventilatory function. She will open her eyes sometimes when you are in the room, but as far as her being able to ... carry on a meaningful-type conversation ... at this point, I don’t think that is reasonable.” When asked whether reducing her medication to “permit recovery of enough cognitive function on her part that we could get any sense from her as to what her preference would be as to therapy,” Dr. Hamner replied, “I don’t think so. I think her respiratory status has deteriorated to the point where she is [expending] an enormous amount of energy just to keep the heart going.” Dr. Wein-gold, asked the same question, gave a similar answer: that A.C.’s few remaining hours of life “will be shortened by attempting to raise her level of consciousness because that is what is keeping her, in a sense, physiologically compliant with the respirator. If you remove that, then I think that will shorten her survival.”

There was no evidence before the court showing that A.C. consented to, or even contemplated, a caesarean section before her twenty-eighth week of pregnancy. There was, in fact, considerable dispute as to whether she would have consented to an immediate caesarean delivery at the time the hearing was held. A.C.’s mother opposed surgical intervention, testifying that A.C. wanted “to live long enough to hold that baby” and that she expected to do so, “even though she knew she was terminal.” Dr. Hamner testified that, given A.C.’s medical problems, he did not think she would have chosen to deliver a child with a substantial degree of impairment. Asked whether A.C. had been “confronted with the question of what to do if there were a choice that ultimately had to be made between her own life expectancy and that of her fetus,” he replied that the question “was addressed [but] at a later gestational age. We had talked about the possibility at twenty-eight weeks, if she had to be intubated, if this was a terminal event, would we intervene, and the expression was yes, that we would, because we felt at twenty-eight weeks we had much more to offer as far as taking care of the child." Finally, Dr. Hamner stated that “the department as a whole” concluded that “we should abide by the wishes of the family.” Dr. Lawrence Lessin, an oncologist and another of A.C.’s treating physicians, testified that in meetings with A.C. he had heard nothing to indicate that, if faced with the decision, she would have refused permission for a caesarean section. Dr. Wein-gold opposed the operation because he believed A.C. had not seriously considered that she might not survive the birth of her baby. Dr. Weingold made explicit what was implicit in Dr. Hamner’s testimony: that “in dealing with her, a message that was sent to her was that the earliest we would feel comfortable in intervening, should there be indication as to either maternal or fetal grounds, would be twenty-eight weeks.”

After hearing this testimony⁴ and the arguments of counsel, the trial court made oral findings of fact. It found, first, that A.C. would probably die, according to un-controverted medical testimony, “within the next twenty-four to forty-eight hours”; second, that A.C. was “pregnant with a twenty-six and a half week viable fetus who, based upon uncontroverted medical testimony, has approximately a fifty to sixty percent chance to survive if a caesarean section is performed as soon as possible”; third, that because the fetus was viable, “the state has [an] important and legitimate interest in protecting the potentiality of human life”; and fourth, that there had been some testimony that the operation “may very well hasten the death of [A.C.],” but that there had also been testimony that delay would greatly increase the risk to the fetus and that “the prognosis is not great for the fetus to be delivered post-mor-tem....” Most significantly, the court found:

The court is of the view that it does not clearly know what [A.C.’s] present views are with respect to the issue of whether or not the child should live or die. She’s presently unconscious. As late as Friday of last week, she wanted the baby to live. As late as yesterday, she did not know for sure.

Having made these findings of fact and conclusions of law, and expressly relying on In re Madyun, 114 Daily Wash.L.Rptr. 2233 (D.C.Super.Ct. July 26, 1986),⁵ the court ordered that a caesarean section be performed to deliver A.C.’s child.

The court’s decision was then relayed to A.C., who had regained consciousness. When the hearing reconvened later in the day, Dr. Hamner told the court:

I explained to her essentially what was going on.... I said it’s been deemed we should intervene on behalf of the baby by caesarean section and it would give it the only possible chance of it living. Would you agree to this procedure? She said yes. I said, do you realize that you may not survive the surgical procedure? She said yes. And I repeated the two questions to her again [and] asked her did she understand. She said yes. [Emphasis added.]

When the court suggested moving the hearing to A.C.'s bedside, Dr. Hamner discouraged the court from doing so, but he and Dr. Weingold, together with A.C.’s mother and husband, went to A.C.’s room to confirm her consent to the procedure. What happened then was recounted to the court a few minutes later:

The Court: Will you bring us up to date? Did you have a conversation with [A.C.]?

DR. Weingold: I did not. I observed the conversation between Dr. Hamner and [A.C.]. Dr. Hamner went into the room to attempt to verify his previous discussion with the patient, with the patient’s husband at her right hand and her mother at her left hand. He, to my satisfaction, clearly communicated with [A.C.]. She understood.

The Court: You could hear what the parties were saying to one another?

Dr. Weingold: She does not make sound because of the tube in her windpipe. She nods and she mouths words. One can see what she’s saying rather readily. She asked whether she would survive the operation. She asked [Dr.] Hamner if he would perform the operation. He told her he would only perform it if she authorized it but it would be done in any case. She understood that. She then seemed to pause for a few moments and then very clearly mouthed words several times, I don’t want it done. I don’t want it done. Quite clear to me.

I would obviously state the obvious and that is this is an environment in which, from my perspective as a physician, this would not be an informed consent one way or the other. She’s under tremendous stress with the family on both sides, but I’m satisfied that I heard clearly what she said.

The Court: Dr. Hamner, did you wish to elaborate?

Dr. Hamner: That’s accurate. I noticed she was much more alert than she had been earlier in the day and was responding to the nurses in the room as well as to all the physicians and went through the same sequence Dr. Weingold noted. [Emphasis added.]

Dr. Weingold later qualified his opinion as to A.C.’s ability to give an informed consent, stating that he thought the environment for an informed consent was non-existent because A.C. was in intensive care, flanked by a weeping husband and mother. He added:

I think she’s in contact with reality, clearly understood who Dr. Hamner was. Because of her attachment to him [she] wanted him to perform the surgery. Understood he would not unless she consented and did not consent.

That is, in my mind, very clear evidence that she is responding, understanding, and is capable of making such decisions.

Dr. Hamner stated that the sedation had “worn off enough for her to wake up to this state” and that “the level of drugs in her body is much different from several hours ago.” Consequently, despite A.C.’s continued sedation, Dr. Weingold said that she was “quite reactive,” and Dr. Hamner concurred.

After hearing this new evidence, the court found that it was “still not clear what her intent is” and again ordered that a caesarean section be performed. A.C.’s counsel sought a stay in this court, which was denied. In re A.C., 533 A.2d 611, 613 (D.C.1987). The operation took place, but the baby lived for only a few hours, and A.C. succumbed to cancer two days later.

Ill

The reader may wonder why we are issuing an en bane opinion in this ease despite its apparent mootness.⁶ The case is moot only in the sense that the surgery which was ordered in this case has been performed, and no decision of ours can put the parties in the same position in which they found themselves before the trial court’s order was issued. Otherwise the case is not moot, because collateral consequences will flow from any decision we make in this appeal.

The personal representative of A.C.’s estate has filed an action separate from this appeal against the hospital, based on the events leading to the trial court’s order in this case. In these circumstances we adhere to our prior decisions refusing to dismiss an appeal as moot when resolution of the legal issues might affect a separate action, actual or prospective, between the parties. See Kopff v. District of Columbia Alcoholic Beverage Control Board, supra note 6, 381 A.2d at 1378; Saunders v. First National Realty Corp., 245 A.2d 836, 837 (D.C.1968), aff'd in relevant part sub nom. Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 371 n. 5, 428 F.2d 1071, 1073 n. 5, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970); Brown v. Southall Realty Co., 237 A.2d 834, 835-836 (D.C.1968); cf. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-122, 94 S.Ct. 1694, 1697-98, 40 L.Ed.2d 1 (1974). Any right of action that A.C. may have had against the hospital as a result of the events that culminated in the trial court’s order has probably survived her and may still be asserted by her estate (assuming that it is not otherwise subject to dismissal or barred for other reasons). See D.C.Code § 12-101 (1989) (survival statute).

Even if this case were truly moot and had no collateral consequences, we would nevertheless elect to hear it because what occurred here is “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); see Lynch v. United States, 557 A.2d 580, 582-583 (D.C.1989) (en banc); United States v. Edwards, 430 A.2d 1321, 1324 n. 2 (D.C.1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982). See generally Alton & Southern Ry. v. International Ass’n of Machinists, 150 U.S.App.D.C. 36, 463 F.2d 872 (1972). The challenged action here is not just the trial court’s order but the hospital’s handling of the medical emergency, which necessarily was too short to be fully litigated, given A.C.’s rapidly declining condition. Additionally, this is a suit for a declaratory judgment, in which the plaintiff is not A.C. but the hospital. Because the hospital operates a high-risk pregnancy clinic, it will in all likelihood again face a situation in which a pregnant but dying patient is either incapable of consenting to treatment or affirmatively refusing treatment. Indeed, any hospital in the District of Columbia may find itself in the same situation, even one without a specialized facility for such patients. There is thus a reasonable expectation that the challenged action in this case — i.e., the hospital’s decision to seek judicial authorization for a medical procedure affecting a pregnant patient in extre-mis —may occur again. See Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 601-602 & n. 6, 98 L.Ed.2d 686 (1988). Accordingly, we conclude that we should entertain this appeal in the exercise of our discretion, even assuming that it is partially or wholly moot.

IV

Although we decide this case on the merits of the legal issues, it is important to remember that factual disputes dominate this controversy and determine how the legal issues are framed. It is, of course, beyond dispute that the trial court’s findings of fact are binding on this court unless clearly erroneous. D.C.Code § 17-305(a) (1989); see, e.g., Bell v. Jones, 523 A.2d 982, 992 (D.C.1986). Sitting as an appellate court, we cannot engage in fact-finding. See Harmatz v. Zenith Radio Corp., 265 A.2d 291, 292 (D.C.1970). With these preliminary observations, we proceed to address the issues as we understand them.

A. Informed Consent and Bodily Integrity

A number of learned articles have been written about the propriety or impropriety of court-ordered caesarean sections. E.g., Johnsen, The Creation of Fetal Rights: Conflicts with Women’s Constitutional Rights to Liberty, Privacy, and Equal Protection, 95 Yale L.J. 599 (1986); Kolder, Gallagher & Parsons, Court-Ordered Obstetrical Interventions, 316 New Eng. J. Med. 1192 (1987) (hereafter Obstetrical Interventions); Rhoden, The Judge in the Delivery Room: The Emergence of Court-Ordered Caesareans, 74 Cal.L.Rev. 1951 (1986); Robertson, Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, 69 Va.L.Rev. 405 (1983). Commentators have also considered how medical decisions for incompetent persons which may involve some detriment or harm to them should be made. E.g., Pollock, Life and Death Decisions: Who Makes Them and by What Standards?, 41 Rutgers L.Rev. 505, 518-540 (1989); Robertson, Organ Donations by Incompetents and the Substituted Judg-merit Doctrine, 76 Colum.L.Rev. 48 (1976). These and other articles demonstrate the complexity of medical intervention cases, which become more complex with the steady advance of medical technology. From a recent national survey, it appears that over the five years preceding the survey there were thirty-six attempts to override maternal refusals of proposed medical treatment, and that in fifteen instances where court orders were sought to authorize caesarean interventions, thirteen such orders were granted. Obstetrical Interventions, supra, 316 New Eng. J. Med. at 1192-1193. Compare Goldberg, Medical Choices During Pregnancy: Whose Decision Is It Anyway?, 41 Rutgers L.Rev. 591, 609 (1989) (finding twelve such cases). Nevertheless, there is only one published decision from an appellate court that deals with the question of when, or even whether, a court may order a caesarean section: Jefferson v. Griffin Spalding County Hospital Authority, 247 Ga. 86, 274 S.E.2d 457 (1981).

Jefferson is of limited relevance, if any at all, to the present case. In Jefferson there was a competent refusal by the mother to undergo the proposed surgery, but the evidence showed that performance of the caesarean was in the medical interests of both the mother and the fetus.⁷ In the instant case, by contrast, the evidence is unclear as to whether A.C. was competent when she mouthed her apparent refusal of the caesarean (“I don’t want it done”), and it was generally assumed that while the surgery would most likely be highly beneficial to the fetus, it would be dangerous for the mother. Thus there was no clear maternal-fetal conflict in this case arising from a competent decision by the mother to forego a procedure for the benefit of the fetus. The procedure may well have been against A.C.’s medical interest, but if she was competent and given the choice, she may well have consented to an operation of significant risk to herself in order to maximize her fetus’ chance for survival. From the evidence, however, we simply cannot tell whether she would have consented or not.

Thus our analysis of this case begins with the tenet common to all medical treatment cases: that any person has the right to make an informed choice, if competent to do so, to accept or forego medical treatment. The doctrine of informed consent, based on this principle and rooted in the concept of bodily integrity, is ingrained in our common law. See Crain v. Allison, 443 A.2d 558, 561-562 (D.C.1982); Canterbury v. Spence, 150 U.S.App.D.C. 263, 271, 464 F.2d 772, 780, cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972); Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 127, 105 N.E. 92, 93 (1914). Under the doctrine of informed consent, a physician must inform the patient, “at a minimum,” of “the nature of the proposed treatment, any alternative treatment procedures, and the nature and degree of risks and benefits inherent in undergoing and in abstaining from the proposed treatment.” Crain v. Allison, supra, 443 A.2d at 562 (footnote omitted). To protect the right of every person to bodily integrity, courts uniformly hold that a surgeon who performs an operation without the patient’s consent may be guilty of a battery, Canterbury v. Spence, supra, 150 U.S.App.D.C. at 274, 464 F.2d at 783, or that if the surgeon obtains an insufficiently informed consent, he or she may be liable for negligence. Crain v. Allison, supra, 443 A.2d at 561-562. Furthermore, the right to informed consent “also encompasses a right to informed refusal.” In re Conroy, 98 N.J. 321, 336, 486 A.2d 1209, 1222 (1985) (citation omitted).

In the same vein, courts do not compel one person to permit a significant intrusion upon his or her bodily integrity for the benefit of another person’s health. See, e.g., Bonner v. Moran, 75 U.S.App.D.C. 156, 157, 126 F.2d 121, 122 (1941) (parental consent required for skin graft from fifteen-year-old for benefit of cousin who had been severely burned); McFall v. Shimp, 10 Pa.D. & C.3d 90 (Allegheny County Ct. 1978). In McFall the court refused to order Shimp to donate bone marrow which was necessary to save the life of his cousin, McFall:

The common law has consistently held to a rule which provides that one human being is under no legal compulsion to give aid or to take action to save another human being or to rescue.... For our law to compel defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual, and would impose a rule which would know no limits, and one could not imagine where the line would be drawn.

Id. at 91 (emphasis in original). Even though Shimp’s refusal would mean death for McFall, the court would not order Shimp to allow his body to be invaded. It has been suggested that fetal cases are different because a woman who “has chosen to lend her body to bring [a] child into the world” has an enhanced duty to assure the welfare of the fetus, sufficient even to require her to undergo caesarean surgery. Robertson, Procreative Liberty, supra, 69 Va.L.Rev. at 456. Surely, however, a fetus cannot have rights in this respect superior to those of a person who has already been born.⁸

Courts have generally held that a patient is competent to make his or her own medical choices when that patient is capable of “the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.” Canterbury v. Spence, supra, 150 U.S.App.D.C. at 271, 464 F.2d at 780. Thus competency in a case such as this turns on the patient’s ability to function as a decision-maker, acting in accordance with her preferences and values. United States v. Charters, 829 F.2d 479, 495-497 & nn. 23-26 (4th Cir.1987) (competency to make treatment decisions depends on whether the patient is able to make a rational choice based on reason), on rehearing en banc, 863 F.2d 302 (1988); In re Farrell, 108 N.J. 335, 354 & n. 7, 529 A.2d 404, 413 & n. 7 (1987) (“A competent patient has a clear understanding of the nature of his or her illness and prognosis, and of the risks and benefits of the proposed treatment, and has the capacity to reason and make judgments about that information” (citations omitted)); accord, PRESIDENT’S COMMISSION FOR THE Study of Ethioal Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 123 (1983) (hereafter 1983 President’s Commission Report); 1 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions 171-172 (1982) (hereafter 1982 President’s Commission Report).

This court has recognized as well that, above and beyond common law protections, the right to accept or forego medical treatment is of constitutional magnitude. See In re Bryant, 542 A.2d 1216, 1218 (D.C.1988); In re Boyd, 403 A.2d 744, 748 (D.C.1979); In re Osborne, 294 A.2d 372 (D.C. 1972). Other courts also have found a basis in the Constitution for refusing medical treatment. E.g., United States v. Charters, supra, 829 F.2d at 491 & nn. 18-19 (“[t]he right to be free of unwanted physical invasions” is constitutionally protected); Bee v. Greaves, 744 F.2d 1387, 1392-1393 (10th Cir.1984) (same), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985); Tune v. Walter Reed Army Medical Hospital, 602 F.Supp. 1452, 1456 (D.D.C.1985) (competent patient has right to order removal of life-sustaining medical systems); Rasmussen ex rel. Mitchell v. Fleming, 154 Ariz. 207, 215, 741 P.2d 674, 681-682 (1987) (constitutional right of privacy encompasses the right to refuse life-sustaining care); see also John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So.2d 921, 923-926 (Fla.1984) (incompetent persons have the right to discontinue life-sustaining care); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 739, 370 N.E.2d 417, 426 (1977) (incompetent person may decline medical treatment for incurable illness); In re Conroy, supra, 98 N.J. at 336-37, 486 A.2d at 1222-1223, 1229 (competent persons have constitutional right to refuse medical treatment, and persons who become incompetent retain that right).

Decisions of the Supreme Court, while not explicitly recognizing a right to bodily integrity, seem to assume that individuals have the right, depending on the circumstances, to accept or refuse medical treatment or other bodily invasion. See, e.g., Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Rochin v. California, supra note 8; cf. Union Pacific Ry. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891) (“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” (emphasis added)). In Winston v. Lee, supra, a robbery suspect challenged the state’s right to compel him to submit to surgery for the removal of a bullet which was lodged in a muscle in his chest. The Court noted that the proposed surgery, which would require a general anesthetic, “would be an ‘extensive’ intrusion on respondent’s personal privacy and bodily integrity” and a “virtually total divestment of respondent’s ordinary control over surgical probing beneath his skin,” 470 U.S. at 764-765, 105 S.Ct. at 1619 (citation omitted), and held that, without the patient-suspect’s consent, the surgery was constitutionally impermissible. Nevertheless, even in recognizing a right to refuse medical treatment or state-imposed surgery, neither Winston nor any other Supreme Court decision holds that this right of refusal is absolute. Rather, in discussing the constitutional “reasonableness of surgical intrusions beneath the skin,” the Court said in Winston that the Fourth Amendment “neither forbids nor permits all such intru-sions_” Id. at 760, 105 S.Ct. at 1616 (citing Schmerber v. California, supra); see also Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (upholding compulsory smallpox vaccinations over religious objections).⁹

This court and others, while recognizing the right to accept or reject medical treatment, have consistently held that the right is not absolute. E.g., In re Boyd, supra, 403 A.2d at 749-750; In re Osborne, supra, 294 A.2d at 374; In re President & Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80, 331 F.2d 1000, cert. denied, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964); Rasmussen ex rel. Mitchell v. Fleming, supra, 154 Ariz. at 216, 741 P.2d at 683; In re Conroy, supra, 98 N.J. at 337, 486 A.2d at 1223; cf. Hughes v. United States, 429 A.2d 1339 (D.C.1981) (upholding as reasonable a minor surgical intrusion to remove bullets from a criminal suspect);¹⁰ United States v. Crowder, 177 U.S.App.D.C. 165, 543 F.2d 312 (1976) (same), cert. denied, 429 U.S. 1062, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977).¹¹ In some cases, especially those involving life-or-death situations or incompetent patients, the courts have recognized four countervailing interests that may involve the state as parens patriae: preserving life, preventing suicide, maintaining the ethical integrity of the medical profession, and protecting third parties. See, e.g., In re Boyd, supra, 403 A.2d at 748 n. 9; Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 431-433, 497 N.E.2d 626, 634 (1986); Saikewicz, supra, 373 Mass. at 737, 370 N.E.2d at 425; In re Farrell, supra, 108 N.J. at 350, 529 A.2d at 410-411. Neither the prevention of suicide ¹² nor the integrity of the medical profession ¹³ has any bearing on this case. Further, the state’s interest in preserving life must be truly compelling to justify overriding a competent person’s right to refuse medical treatment. In re Osborne, supra, 294 A.2d at 374-375; Tune v. Walter Reed Army Medical Hospital, supra, 602 F.Supp. at 1455-1456. This is equally true for incompetent patients, who have just as much right as competent patients to have their decisions made while competent respected, even in a substituted judgment framework. See In re Boyd, supra, 403 A.2d at 750; John F. Kennedy Memorial Hospital, Inc. v. Bludworth, supra, 452 So.2d at 923-924; Saikewicz, supra, 373 Mass. at 739, 370 N.E.2d at 427-428; In re Conroy, supra, 98 N.J. at 343, 486 A.2d at 1229.

In those rare cases in which a patient’s right to decide her own course of treatment has been judicially overridden, courts have usually acted to vindicate the state’s interest in protecting third parties, even if in fetal state. See Jefferson v. Griffin Spalding County Hospital Authority, supra (ordering that caesarean section be performed on a woman in her thirty-ninth week of pregnancy to save both the mother and the fetus); Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421, 201 A.2d 537 (ordering blood transfusions over the objection of a Jehovah’s Witness, in her thirty-second week of pregnancy, to save her life and that of the fetus), cert. denied, 377 U.S. 985, 84 S.Ct. 1894, 12 L.Ed.2d 1032 (1964); In re Jamaica Hospital, 128 Misc.2d 1006, 491 N.Y.S.2d 898 (Sup.Ct.1985) (ordering the transfusion of blood to a Jehovah’s Witness eighteen weeks pregnant, who objected on religious grounds, and finding that the state’s interest in the not-yet-viable fetus outweighed the patient’s interests); Crouse Irving Memorial Hospital, Inc. v. Paddock, 127 Misc.2d 101, 485 N.Y.S.2d 443 (Sup.Ct.1985) (ordering transfusions as necessary over religious objections to save the mother and a fetus that was to be prematurely delivered); cf. In re President & Directors of Georgetown College, Inc., supra, 118 U.S.App.D.C. at 88, 331 F.2d at 1008 (ordering a transfusion, inter alia, because of a mother’s parental duty to her living minor children). But see Taft v. Taft, 388 Mass. 331, 446 N.E.2d 395 (1983) (vacating an order which required a woman in her fourth month of pregnancy to undergo a “purse-string” operation, on the ground that there were no compelling circumstances to justify overriding her religious objections and her constitutional right of privacy).

What we distill from the cases discussed in this section is that every person has the right, under the common law and the Constitution, to accept or refuse medical treatment.¹⁴ This right of bodily integrity belongs equally to persons who are competent and persons who are not. Further, it matters not what the quality of a patient’s life may be; the right of bodily integrity is not extinguished simply because someone is ill, or even at death’s door. To protect that right against intrusion by others — family members, doctors, hospitals, or anyone else, however well-intentioned — we hold that a court must determine the patient’s wishes by any means available, and must abide by those wishes unless there are truly extraordinary or compelling reasons to override them. In re Osborne, supra. When the patient is incompetent, or when the court is unable to determine competency, the substituted judgment procedure must be followed.

From the record before us, we simply cannot tell whether A.C. was ever competent, after being sedated, to make an informed decision one way or the other regarding the proposed caesarean section. The trial court never made any finding about A.C.’s competency to decide. Undoubtedly, during most of the proceedings below, A.C. was incompetent to make a treatment decision; that is, she was unable to give an informed consent based on her assessment of the risks and benefits of the contemplated surgery. The court knew from the evidence that A.C. was sedated and unconscious, and thus it could reasonably have found her incompetent to render an informed consent; however, it made no such finding. On the other hand, there was no clear evidence that A.C. was competent to render an informed consent after the trial court’s initial order was communicated to her.

We think it is incumbent on any trial judge in a case like this, unless it is impossible to do so, to ascertain whether a patient is competent to make her own medical decisions. Whenever possible, the judge should personally attempt to speak with the patient and ascertain her wishes directly, rather than relying exclusively on hearsay evidence, even from doctors.¹⁵ See In re Osborne, surpa, 294 A.2d at 374; In re President & Directors of Georgetown College, Inc., supra, 118 U.S.App.D.C. at 87, 331 F.2d at 1007. It is improper to presume that a patient is incompetent. United States v. Charters, supra, 829 F.2d at 495. We have no reason to believe that, if competent, A.C. would or would not have refused consent to a caesarean. We hold, however, that without a competent refusal from A.C. to go forward with the surgery, and without a finding through substituted judgment that A.C. would not have consented to the surgery, it was error for the trial court to proceed to a balancing analysis, weighing the rights of A.C. against the interests of the state.

There are two additional arguments against overriding A.C.’s objections to caesarean surgery. First, as the American Public Health Association cogently states in its amicus curiae brief:

Rather than protecting the health of women and children, court-ordered/caesareans erode the element of trust that permits a pregnant woman to communicate to her physician — without fear of reprisal — all information relevant to her proper diagnosis and treatment. An even more serious consequence of court-ordered intervention is that it drives women at high risk of complications during pregnancy and childbirth out of the health care system to avoid coerced treatment.¹⁶

Second, and even more compellingly, any judicial proceeding in a case such as this will ordinarily take place — like the one before us here — under time constraints so pressing that it is difficult or impossible for the mother to communicate adequately with counsel, or for counsel to organize an effective factual and legal presentation in defense of her liberty and privacy interests and bodily integrity. Any intrusion implicating such basic values ought not to be lightly undertaken when the mother not only is precluded from conducting pre-trial discovery (to which she would be entitled as a matter of course in any controversy over even a modest amount of money) but also is in no position to prepare meaningfully for trial. As one commentator has noted:

The procedural shortcomings rampant in these cases are not mere technical deficiencies. They undermine the authority of the decisions themselves, posing serious' questions as to whether judges can, in the absence of genuine notice, adequate representation, explicit standards of proof,' and right of appeal, realistically frame principled and useful legal responses to the dilemmas with which they are being confronted. Certainly courts dealing with other kinds of medical decision-making conflicts have insisted both upon much more rigorous procedural standards and upon significantly more information.

Gallagher, Prenatal Invasions and Interventions: What’s Wrong with Fetal Rights, 10 Harv.Women’s L.J. 9, 49 (1987).

In this case A.C.’s court-appointed attorney was unable even to meet with his client before the hearing. By the time the case was heard, A.C.’s condition did not allow her to be present, nor was it reasonably possible for the judge to hear from her directly. The factual record, moreover, was significantly flawed because A.C.’s medical records were not before the court and because Dr. Jeffrey Moscow, the physician who had been treating A.C. for many years, was not even contacted and hence did not testify.¹⁷ Finally, the time for legal preparation was so minimal that neither the court nor counsel mentioned the doctrine of substituted judgment, which — with benefit of briefs, oral arguments, and above all, time — we now deem critical to the outcome of this case. We cannot be at all certain that the trial judge would have reached the same decision if the testimony of Dr. Moscow and the abundant legal scholarship filed in this court had been meaningfully available to him, and if there had been enough time for him to consider and reflect on these matters as a judge optimally should do.¹⁸

B. Substituted Judgment

In the previous section we discussed the right of an individual to accept or reject medical treatment. We concluded that if a patient is competent and has made an informed decision regarding the course of her medical treatment, that decision will control in virtually all cases. Sometimes, however, as our analysis presupposes here, a once competent patient will be unable to render an informed decision. In such a case, we hold that the court must make a substituted judgment on behalf of the patient, based on all the evidence. This means that the duty of the court, “as surrogate for the incompetent, is to determine as best it can what choice that individual, if competent, would make with respect to medical procedures.” In re Boyd, supra, 403 A.2d at 750 (citation omitted).

Under the substituted judgment procedure, the court as decision-maker must “substitute itself as nearly as may be for the incompetent, and ... act upon the same motives and considerations as would have moved her_” City Bank Farmers Trust Co. v. McGowan, 323 U.S. 594, 599, 65 S.Ct. 496, 498, 89 L.Ed. 483 (1945). The concept of substituted judgment, which has its roots in English law, was intended to allow courts to make dispositions from the estates of incompetents akin to those that the incompetents would have made if competent. See Strunk v. Strunk, 445 S.W.2d 145, 147-148 (Ky.1969). In recent times the procedure has been used to authorize organ “donations” by incompetents, as in Strunk, and to prohibit the forced administration of medical treatment to incompetents, over religious objections, where life itself was not at stake. E.g., In re Boyd, supra; United States v. Charters, supra. Most cases involving substituted judgment, however, have arisen in the "right to die” context, and the courts have generally concluded that giving effect to the perceived decision of the incompetent is the proper course, even though doing so will result in the incompetent’s death. E.g., In re Spring, 380 Mass. 629, 405 N.E.2d 115 (1980); In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987); In re Colyer, 99 Wash.2d 114, 660 P.2d 738 (1983). See generally Pollock, Life and Death Decisions: Who Makes Them and by What Standards?, 41 Rutgers L. Rev. 505 (1989); Annotation, Judicial Power to Order Discontinuance of Life-Sustaining Treatment, 48 A.L.R. 4th 67 (1986).

We have found no reported opinion applying the substituted judgment procedure to the case of an incompetent pregnant patient whose own life may be shortened by a caesarean section, and whose unborn child’s chances of survival may hang on the court’s decision. Despite this precedential void, we conclude that substituted judgment is the best procedure to follow in such a case because it most clearly respects the right of the patient to bodily integrity. Thus we reaffirm our holding in In re Boyd, in which we discussed how a substituted judgment should be made when a patient, although incompetent, has previously expressed objections to treatment, and we observe that many of the factors found relevant to discerning the patient’s choice in Boyd are relevant here.

We begin with the proposition that the substituted judgment inquiry is primarily a subjective one: as nearly as possible, the court must ascertain what the patient would do if competent. In re Boyd, supra, 403 A.2d at 750; In re Spring, supra, 380 Mass. at 633, 405 N.E.2d at 119; Saikewicz, supra, 373 Mass. at 344, 370 N.E.2d at 431; In re Conroy, supra, 98 N.J. at 343, 486 A.2d at 1229. Due process strongly suggests (and may even require) that counsel or a guardian ad litem should be appointed for the patient unless the situation is so urgent that there is no time to do so.

Because it is the patient’s decisional rights which the substituted judgment inquiry seeks to protect, courts are in accord that the greatest weight should be given to the previously expressed wishes of the patient. This includes prior statements, either written or oral, even though the treatment alternatives at hand may not have been addressed. See In re Boyd, supra, 403 A.2d at 751-752 (absolute objections to treatment are highly relevant); Brophy v. New England Sinai Hospital, Inc., supra, 398 Mass. at 427, 497 N.E.2d at 631; In re Conroy, supra, 98 N.J. at 343-45, 486 A.2d at 1229-1230; In re Dorone, 349 Pa.Super. 59, 68, 502 A.2d 1271, 1278 (1985), aff'd, 517 Pa. 3, 534 A.2d 452 (1987); see also 1982 President’s Commission Report, supra, at 179. The court should also consider previous decisions of the patient concerning medical treatment, especially when there may be a discernibly consistent pattern of conduct or of thought. E.g., In re Boyd, supra, 403 A.2d at 751; In re Conroy, supra, 98 N.J. at 345, 486 A.2d at 1230; In re Dorone, supra, 349 Pa.Super. at 68, 502 A.2d at 1278; see also 1983 President’s Commission Report, supra, at 133. Thus in a case such as this it would be highly relevant that A.C. had consented to intrusive and dangerous surgeries in the past, and that she chose to become pregnant and to protect her pregnancy by seeking treatment at the hospital’s high-risk pregnancy clinic. It would also be relevant that she accepted a plan of treatment which contemplated caesarean intervention at the twenty-eighth week of pregnancy, even though the possibility of a caesarean during the twenty-sixth week was apparently unforeseen. On the other hand, A.C. agreed to a plan of palliative treatment which posed a greater danger to the fetus than would have been necessary if she were unconcerned about her own continuing care. Further, when A.C. was informed of the fatal nature of her illness, she was equivocal about her desire to have the baby.

Courts in substituted judgment cases have also acknowledged the importance of probing the patient’s value system as an aid in discerning what the patient would choose. We agree with this approach. See In re Boyd, supra, 403 A.2d at 751 (considering the patient’s adherence to religious tenets); Brophy v. New England Sinai Hospital, Inc., supra, 398 Mass. at 427, 497 N.E.2d at 631; In re Roe, 383 Mass. 415, 433, 421 N.E.2d 40, 56-59 (1981); In re Conroy, supra, 98 N.J. at 344, 486 A.2d at 1230; In re Dorone, supra, 349 Pa.Super. at 68, 502 A.2d at 1278; see also 1982-President’s Commission Report, supra, at 179. Most people do not foresee what calamities may befall them; much less do they consider, or even think about, treatment alternatives in varying situations. The court in a substituted judgment case, therefore, should pay special attention to the known values and goals of the incapacitated patient, and should strive, if possible, to extrapolate from those values and goals what the patient’s decision would be.

Although treating physicians may be an invaluable source of such information about a patient, the family will often be the best source. See, e.g., In re Jobes, supra, 108 N.J. at 408, 529 A.2d at 445-446. Family members or other loved ones will usually be in the best position to say what the patient would do if competent.¹⁹ The court should be mindful, however, that while in the majority of cases family members will have the best interests of the patient in mind, sometimes family members will rely on their own judgments or predilections rather than serving as conduits for expressing the patient’s wishes. This is why the court should endeavor, whenever possible, to make an in-person appraisal “of the patient’s personal desires and ability for rational choice. In this way the court can always know, to the extent possible, that the judgment is that of the individual concerned and not that of those who believe, however well-intentioned, that they speak for the person whose life is in the balance.” In re Osborne, supra, 294 A.2d at 374; see also John F. Kennedy Memorial Hospital, Inc. v. Bludworth, supra, 452 So.2d at 926-927 (“Disagreement among the physicians or family members or evidence of wrongful motives or malpractice may require judicial intervention”).²⁰

In short, to determine the subjective desires of the patient, the court must consider the totality of the evidence, focusing particularly on written or oral directions concerning treatment to family, friends, and health-care professionals. The court should also take into account the patient’s past decisions regarding medical treatment, and attempt to ascertain from what is known about the patient’s value system, goals, and desires what the patient would decide if competent. See In re Conroy, supra, 98 N.J. at 343-44, 486 A.2d at 1229-1230; In re Dorone, supra, 349 Pa.Super. at 68, 502 A.2d at 1278.

After considering the patient’s prior statements, if any, the previous medical decisions of the patient, and the values held by the patient, the court may still be unsure what course the patient would choose. In such circumstances the court may supplement its knowledge about the patient by determining what most persons would likely do in a similar situation. In re Boyd, supra, 403 A.2d at 751, citing Saikewicz, supra, 373 Mass. at 343, 370 N.E.2d at 430; accord, 1983 President’s Commission Report, supra, at 135; 1982 President’s Commission Report, supra, at 180-181. When the patient is pregnant, however, she may not be concerned exclusively with her own welfare.²¹ Thus it is proper for the court, in a case such as this, to weigh (along with all the other factors) the mother’s prognosis, the viability of the fetus, the probable result of treatment or non-treatment for both mother and fetus, and the mother’s likely interest in avoiding impairment for her child together with her own instincts for survival. Cf. In re Roe, supra, 383 Mass. at 431, 421 N.E.2d at 57.

Additionally, the court should consider the context in which prior declarations, treatment decisions, and expressions of personal values were made, including whether statements were made casually or after contemplation, or in accordance with deeply held beliefs. See In re Conroy, supra, 98 N.J. at 344, 486 A.2d at 1230; In re Dorone, supra, 349 Pa.Super. at 68, 502 A.2d at 1278; In re Colyer, supra, 99 Wash.2d at 125, 660 P.2d at 748. Finally, in making a substituted judgment, the court should become as informed about the patient’s condition, prognosis, and treatment options as one would expect any patient to become before making a treatment decision. See In re Conroy, supra, 98 N.J. at 345, 486 A.2d at 1231. Obviously, the weight accorded to all of these factors will vary from case to case.

C. The Trial Court’s Ruling

We reiterate that we cannot find the facts in this or any other case. That is the function of trial judges, who can view the witnesses and discern from their demeanor and testimony, rather than a cold written record, what the facts are. In this case there is an understandable paucity of factual findings, which necessarily limits our review. The trial court, faced with an issue affecting life and death, was forced to make a decision with almost no time for deliberation. Nevertheless, after reviewing the transcript of the hearing and the court’s oral findings, it is clear to us that the trial court did not follow the substituted judgment procedure. On the contrary, the court's specific finding before its decision was communicated to A.C. was as follows:

The court is of the view that it does not clearly know what [A.C.’s] present views are with respect to the issue of whether or not the child should live or die. She’s presently unconscious. As late as Friday of last week, she wanted the baby to live. As late as yesterday, she did not know for sure.

The court did not go on, as it should have done, to make a finding as to what A.C. would have chosen to do if she were competent. Instead, the court undertook to balance the state’s and L.M.C.’s interests in surgical intervention against A.C.’s perceived interest in not having the caesarean performed.

After A.C. was informed of the court’s decision, she consented to the caesarean; moments later, however, she withdrew her consent. The trial court did not then make a finding as to whether A.C. was competent to make the medical decision or whether she had made an informed decision one way or the other. Nor did the court then make a substituted judgment for A.C. Instead, the court said that it was “still not clear what her intent is” and again ordered the caesarean.

It is that order which we must now set aside. What a trial court must do in a case such as this is to determine, if possible, whether the patient is capable of making an informed decision about the course of her medical treatment. If she is, and if she makes such a decision, her wishes will control in virtually all cases. If the court finds that the patient is incapable of making an informed consent (and thus incompetent), then the court must make a substituted judgment. This means that the court must ascertain as best it can what the patient would do if faced with the particular treatment question. Again, in virtually all cases the decision of the patient, albeit discerned through the mechanism of substituted judgment, will control. We do not quite foreclose the possibility that a conflicting state interest may be so compelling that the patient’s wishes must yield,²² but we anticipate that such cases will be extremely rare and truly exceptional. This is not such a case.

Having said that, we go no further. We need not decide whether, or in what circumstances, the state’s interests can ever prevail over the interests of a pregnant patient. We emphasize, nevertheless, that it would be an extraordinary case indeed in which a court might ever be justified in overriding the patient’s wishes and authorizing a major surgical procedure such as a caesarean section. Throughout this opinion we have stressed that the patient’s wishes, once they are ascertained, must be followed in “virtually all cases,” ante at 1249, unless there are “truly extraordinary or compelling reasons to override them,” ante at 1247. Indeed, some may doubt that there could ever be a situation extraordinary or compelling enough to justify a massive intrusion into a person’s body, such as a caesarean section, against that person’s will. Whether such a situation may someday present itself is a question that we need not strive to answer here. We see no need to reach out and decide an issue that is not presented on the record before us; this case is difficult enough as it is. We think it sufficient for now to chart the course for future cases resembling this one, and to express the hope that we shall not be presented with a case in the foreseeable future that requires us to sail off the chart into the unknown.²³

V

Ordinarily, when the factual record in a case is insufficient to support the trial court’s decision, we remand for additional findings. In this case, however, a remand for supplemental findings would be inappropriate and futile because the caesarean has been performed and cannot be undone. The record is unclear as to whether A.C. was ever competent, after being sedated, to make her own decision, and the likelihood of marshaling further evidence now on this question is doubtful at best. If the substituted judgment procedure were to be followed, there is evidence going both ways as to what decision A.C. would have made, and we see no point in requiring the court now to make that determination when it can have no practical effect on either A.C. or L.M.C.

Accordingly, we vacate the order of the trial court and remand the case for such further proceedings as may be appropriate. We note, in doing so, that the trial court’s order allowing the hospital to perform the caesarean section was presumptively valid from the date it was entered until today. What the legal effect of that order may have been during its lifetime is a matter on which we express no opinion here.

Vacated and remanded.

1 . Strictly speaking, this is not a rehearing but an initial hearing en banc. The motions division heard only the application for a stay, which it denied and which is now moot. The en banc court, however, has before it the entire appeal on the merits, which no division of the court has ever considered.

2 . We observe nevertheless that it would be far better if judges were not called to patients' bedsides and required to make quick decisions on issues of life and death. Because judgment in such a case involves complex medical and ethical issues as well as the application of legal principles, we would urge the establishment— through legislation or otherwise — of another tribunal to make these decisions, with limited opportunity for judicial review. See Satz v. Perlmutter, 379 So.2d 359, 360 (Fla.1980); In re Conroy, 98 N.J. 321, 335, 486 A.2d 1209, 1221 (1985); In re Hamlin, 102 Wash.2d 810, 817, 689 P.2d 1372, 1378-1379 (1984).

We also emphasize that our decision today is the result of considerable deliberation and that we have enjoyed two luxuries unavailable to the trial court: ample time to decide the case, and extensive briefs and oral argument from the parties and several amici. The trial judge had no such advantage. He was called in during the worst of emergencies, with little time for reflection, to make a decision which under the best of circumstances is extraordinarily difficult. Although we conclude that his decision must be set aside, we nevertheless commend him for the painstaking and conscientious manner in which he performed the task before him.

3 . Dr. Edwards was testifying as an expert, but not as a treating physician. Up to that point she had had "no direct involvement" with either A.C. or her family, but she did hear the testimony of the treating physicians who were familiar with A.C.’s condition.

4 . A.C.’s husband was too distraught to testify and uttered only a few words at the hearing.

5 . Madyun was affirmed by this court in an unreported order. See also note 23, infra.

6 . We do not revisit in this appeal the issue of whether this court is bound by the case-or-controversy strictures of Article III of the Constitution. See Lee v. District of Columbia Board of Appeals & Review, 423 A.2d 210, 216-217 n. 13 (D.C.1980); Kopff v. District of Columbia Alcoholic Beverage Control Board, 381 A.2d 1372, 1377-1378 & n. 11 (D.C.1977); D.C.Code § 11 — 705(b) (1989).

7 . Because the patient in Jefferson had a placenta previa which blocked the birth canal, doctors estimated that without caesarean intervention there was a ninety-nine percent chance that her full-term fetus would perish and a fifty percent chance that the mother would die as well. The mother was unquestionably competent to make her own treatment decisions, but refused a caesarean because of her religious beliefs. A trial court gave custody of the fetus to state human resources officials and ordered a caesarean section; the Georgia Supreme Court denied the parents' motion for a stay.

8 . There are also practical consequences to consider. What if A.C. had refused to comply with a court order that she submit to a caesarean? Under the circumstances, she obviously could not have been held in civil contempt and imprisoned or required to pay a daily fine until compliance. Cf. United States v. United Mine Workers, 330 U.S. 258, 304-306, 67 S.Ct. 677, 701-02, 91 L.Ed. 884 (1947); D.D. v. M.T., 550 A.2d 37, 43 (D.C.1988). Enforcement could be accomplished only through physical force or its equivalent. A.C. would have to be fastened with restraints to the operating table, or perhaps involuntarily rendered unconscious by forcibly injecting her with an anesthetic, and then subjected to unwanted major surgery. Such actions would surely give one pause in a civilized society, especially when A.C. had done no wrong. Cf. Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952).

9 . We think it appropriate here to reiterate and emphasize a point that the motions division made in its opinion: "that this case is not about abortion.” In re A.C., supra, 533 A.2d at 614. Supreme Court decisions on abortion, beginning with Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), have been read as recognizing "a fundamental individual right to decide whether or not to beget or bear a child.” Bowers v. Hardwick, 478 U.S. 186, 190, 106 S.Ct. 2841, 2844, 92 L.Ed.2d 140 (1986) (citation omitted). That decisional right is not at issue here, for the record makes clear that A.C. sought to become pregnant, that she wanted to bear her child as close to term as possible, and that neither she nor anyone associated with her at any time sought to terminate her pregnancy. The issue presented in this case is not whether A.C. (or any woman) should have a child but, rather, who should decide how that child should be delivered. That decision involves the right of A.C. (or any woman) to accept or forego medical treatment. The Supreme Court has not yet focused on this question in the context of a pregnancy, and we are not so adept at reading tea leaves as to predict how it might rule. But see Robertson, Procreative Liberty, supra, 69 Va. L.Ri-v. at 451-452 (attempting such a prediction).

10 . In the present case we are dealing with a caesarean section, which is plainly a major surgical procedure. Our discussion of the circumstances, if any, in which the patient’s wishes may be overridden presupposes a major bodily invasion. We express no opinion with regard to the circumstances, if any, in which lesser invasions might be permitted, or where the line should be drawn between "major” and "minor” surgery.

11 . Both Hughes and Crowder antedate the Supreme Court decision in Winston v. Lee, supra. We need not decide here whether Winston would require a different result if Hughes or Crowder were to arise today.

12 . Courts have uniformly drawn a distinction between affirmatively acting to commit suicide and merely allowing one’s body to follow its natural course without treatment. E.g., In re Conroy, supra, 98 N.J. at 337, 486 A.2d at 1224; Saikewicz, supra, 373 Mass. at 738 n. 11, 370 N.E.2d at 426 n. 11.

13 .In this case no physician was ordered to perform surgery or to provide any treatment against his or her will. Further, the current ethical position of the medical community is that a physician treating a pregnant woman in effect has two patients, the mother and the fetus, and should assess the risks and benefits attendant to each in advising the mother on the course of her treatment. American College of Obstetricians and Gynecologists (ACOG) Ethics Committee Opinion No. 55; Patient Choice: Maternal-Fetal Conflict (October 1987).

14 . We are not faced here with any legislative enactment in the area, and thus we have no occasion to rule in any respect on constitutional considerations, if any, that might affect statutory treatment of the various interests at issue.

15 . We recognize, of course, that this will not always be feasible. Our expression of a preference for personal observation by a trial judge "whenever possible” should not be construed as a criticism of the trial judge in this case for failing to move the hearing to A.C.’s bedside.

16 . In at least one case, a woman whose objection to a caesarean delivery had been overridden by a court went into hiding and gave birth to her child vaginally. See Rhoden, supra, 74 Cai.L.Rhv. at 1959-1960. In another case, "a 16-year-old pregnant girl in Wisconsin has been held in secure detention for the sake of her fetus because she tended to be on the run and to lack motivation or ability to seek prenatal care.” Obstetrical Interventions, supra, 316 Nhw Eng J. Mi:». at 1195.

17 . In an affidavit filed after the hearing. Dr. Moscow said that if he had been notified of the proceedings, he would have come to the hospital immediately and would have testified that a caesarean section was medically inadvisable both for A.C. and for the fetus. Dr. Moscow also viewed the hospital’s handling of A.C.’s case as deficient in several other significant respects. In these circumstances we think it unfortunate that Dr. Moscow was not called by representatives of the hospital and made available to the court when the hospital decided to seek judicial guidance.

18 . Although we appreciate the force of Judge Belson’s plain error analysis, to which we would ordinarily be sympathetic, we think it somewhat harsh to preclude a party from making additional arguments on appeal in a case such as this, in which there was virtually no time to prepare for the hearing below.

19 . Nevertheless, when a court is called upon to make a decision or to sanction one, it is frequently because there is a conflict as to treatment choice among family members, physicians, or both. Were family members and physicians in complete agreement, it is unlikely that a court would be brought into the discussion.

20 . The family’s primacy in aiding the court as surrogate decision-maker may be subject to challenge for a variety of reasons. For example, grieving family members may themselves be unable to make or communicate an informed decision. There may also be conflicting interests, or family members may be inclined for their own reasons to disregard what the patient herself would want. See 1982 Pri-siiiknt's Commission Ritort, supra, at 183. On the other hand, we think it proper for the court to con-elude that the patient might consider the needs of her family in making a treatment decision. See In re Roe, supra, 383 Mass. at 432, 421 N.E.2d at 58.

21 . According to the ACOG Ethics Committee Opinion, supra note 13, ”[t]he welfare of the fetus is of the utmost importance to the majority of women; thus only rarely will a conflict arise."

22 . Absolutes like "never" should generally be avoided because "the future may bring scenarios which prudence counsels our not resolving anticipatorily.” Florida Star v. B.J.F., — U.S. -, 109 S.Ct. 2603, 2608, 105 L.Ed.2d 443 (1989).

23 . In particular, we stress that nothing in this opinion should be read as either approving or disapproving the holding in In re Madyun, supra. There are substantial factual differences between Madyun and the present case. In this case, for instance, the medical interests of the mother and the fetus were in sharp conflict; what was good for one would have been harmful to the other. In Madyun, however, there was no real conflict between the interests of mother and fetus; on the contrary, there was strong evidence that the proposed caesarean would be beneficial to both. Moreover, in Mad-yun the pregnancy was at full term, and Mrs. Madyun had been in labor for two and a half days; in this case, however, A.C. was barely two-thirds of the way through her pregnancy, and there were no signs of labor. If another Madyun -type case ever comes before this court, its result may well depend on facts that we cannot now foresee. For that reason (among others), we defer until another day any discussion of whether Madyun was rightly or wrongly decided.