Question 15:
Should food and water ever be withdrawn or withheld in
order to shorten the process of your dying?
The withholding or withdrawal of artificially-administered fluids and
nutrition is one of the most controversial issues in the
right-to-die debate at the beginning of the 21st century. The 'living will'
laws of some states explicitly forbid requesting this
means of shortening one's dying. Other states say
that a proxy can only withdraw or withhold food and water if
the patient has explicitly authorized this.
Most legal observers agree that a state law cannot take away a
pre-existing right under the common law —in this case the
right to refuse any medical treatment, including
providing food and water by tubes. So even if you
live in a state that has tried to ban this practice, you can still
claim it under the common law and under your
Constitutional right of privacy.
In the Cruzan decision, the US Supreme Court has determined that states can
require "clear and convincing" evidence if you want the
termination of life-supports such as food and water. "Clear and
convincing" evidence is the highest standard used in civil cases. The Court could
have accepted "fair preponderance" of the evidence, which is normal in
most civil cases. But the Supreme
Court decided to err on the side of caution —to preserve life
unless there is "clear and convincing" evidence that the patient
would not have wanted to be kept on these life-supports.
As interpreted by the courts, this standard seems to exclude casual, passing comments you shared
in conversation. Only serious, reflective discussion
counts as "clear and convincing". Of course, a
written Advance Directive stating that you do not want to be kept on
life-supports under clearly defined conditions would pass this
test of "clear and convincing" evidence. And if Nancy
Cruzan had had such an Advance Directive, she would not have spent 8 years
sustained by a feeding tube.
This standard leaves no room for the views of relatives. Only your own views as the patient
count. According to the
Supreme Court, your proxies do
not have authority to disconnect a
feeding tube without your explicit authorization. You will be safest
if you have an unambiguous Advance Directive that authorizes
the withdrawal of food and water when there is no
chance of recovery.
142
YOUR LAST YEAR: CREATING YOUR ADVANCE DIRECTIVE FOR MEDICAL CARE
Let's draw out the medical situation envisioned here. We are not talking
about normal eating and drinking. We do have a
Constitutional right to liberty and privacy that allows us to
stop eating and drinking if we want to. Even when we are
not in a hospital or nursing home, we can make a free
choice whether to eat and drink or not.
The situation you must address in your Advance Directive is when you are no
longer able to eat and drink normally. Rather, nutrition
and hydration is being provided to you either thru a
feeding tube into your stomach or intestines or directly into
your bloodstream thru a tube inserted into a vein. Feeding tubes are
a common practice in American nursing homes when the patients
become too incapacitated to feed themselves and it is too
time-consuming to feed them by spoon. Some cannot
swallow normally even when fed by spoon. People in
persistent vegetative state receive food and fluids by tube because there is
no way for them to 'wake up' enough to eat normally.
If you are ever in such a state, do you want to
continue to be sustained by artificial feeding or do you want to discontinue such means of
supporting your body? If you choose to
be fed artificially for an experimental period, how long should
that be? And how should
your proxies decide that continued tube-feeding is futile?
You should be completely clear that if you authorize the withdrawal or
withholding of food and fluids, you will die within a short time—a
week or ten days. Withdrawal is now
the most common means of merciful death in the US. It is justified
under the right to refuse medical treatment. And when you are
receiving food and water thru tubes, numerous courts
have ruled this is a form of medical
treatment.
When you are in a condition to need artificial feeding, you will probably
not be capable of making medical decisions. Thus the
withdrawal decision will have to be made by your proxies. And they will want
to know as completely as you can explain it in your Advance
Directive just what you would want, what limits you
would put on the decision, etc. You might
illustrate your choice by hypothetical examples of conditions in
which you would want
to be sustained by feeding tubes and conditions in
which you would not want
to be sustained.
QUESTION
15: WITHDRAWING FOOD AND
WATER by JAMES
PARK 143
You could choose never
to approve the removal of a feeding tube. You can request
that all such life-supports remain in place until you die
despite the "tubes and machines".
A middle path might be: choosing to be kept on artificial
feeding and hydration until the family can be assembled, when the
life-supports would be withdrawn, resulting in your death, which would be
followed by your funeral or memorial service.
Remaining on feeding tubes will extend your dying process. But you might have
moral or religious reasons for saying that
nothing should be done that would shorten your life. If you are senile
or unconscious while attached to feeding tubes, it will no longer
matter to you whether
you are dead or alive, but it might be
important to your loved ones to keep your body
'alive' as long as possible. The withdrawal of
food and water might be difficult for them. Perhaps you and
the people who are closest to you will be able to
create a compromise between those who want an
early end to tube-feeding and those who want
to maintain life-supports as long as possible.
If some of your proxies would never approve a life-ending decision —perhaps for moral
or religious reasons— and you want
withdrawal of food and water if you will never recover, then you should
appoint a sub-committee of your MCDC specifically to
authorize this and/or other life-ending decisions.