Question 15:  Should food and water ever be withdrawn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.



  The selection above is the full Question 15 from the book:
Your Last Year: Creating Your Own Advance Directive for Medical Care.
If you click this title, you will see the complete table of contents.
If you would like to see one person's Answer to this Question,

go to James Park's Advance Directive for Medical Care.
Scroll down to Answer 15.



Go to the index page for Your Last Year:
Creating Your Own Advance Directive for Medical Care.



Go to the Portal for Advance Directives.



Go to the Right-to-Die Portal.



Go to the Medical Ethics index page.



Go to the DEATH index page.



Go to the opening page for this website:
An Existential Philosopher's Museum.





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