Is the continued provision of food and fluids in Nancy Cruzan's best interests?

• Author: Harris, Curtis E.

Due to an automobile accident, Nancy Cruzan is in a permanently unconscious condition. She has been in this condition since 1983. She is not terminally ill, and experts suggest that she may live another thirty years. No clear and convincing evidence exists as to her intentions regarding refusal of food and fluids. Nancy Cruzan's guardians have requested court authorization to cause Nancy's death by withholding food and fluids from her, leaving her feeding tube in place, but unused, except for medications. They are requesting the recognition of a constitutional right to choose death for Nancy Cruzan.(1)

The Missouri Supreme Court in Cruzan v. Harmon summarized the issue this way:

This is a case in which we are asked to allow the medical profession

to make Nancy die by starvation and dehydration. The

debate here is thus not between life and death; it is between quality

of life and death. We are asked to hold that the cost of maintaining

Nancy's present life is too great when weighed against

the benefit that life conveys both to Nancy and her loved ones and

that she must die.(2)

This statement cuts to the heart of the issues in this case. The issue is death. Does the United States Constitution require a state to authorize a court appointed guardian to cause the death of a dependent ward by denying the ward food and fluids when she is not terminally ill and when there is no clear and convincing evidence of her intent?

The purpose of this article is to show that the decision of the Missouri Supreme Court is in the best interests of persons who are incompetent, whose diagnoses indicate the likelihood of permanent unconsciousness, and who are unable to receive nutrients by mouth. The article has five parts. First, the decision and the Missouri Supreme Court is supported by the legal analyses and conclusions of other courts and jurists in cases involving similar circumstances. Second, the decision is supported by the medical facts, which demonstrate that feeding by tube is in the ward's best interest. Third, the decision is supported by philosophical distinctions which demonstrate that feeding by tube constitutes ordinary care, not medical treatment. Fourth, the decision is supported by traditional health care ethics, which demonstrate that withholding food and fluids without informed consent constitutes nonvoluntary euthanasia. And fifth, the decision is supported by the alarming effects of legalized euthanasia as observed in the Netherlands.

Other Courts Have Reached Similar Conclusions

The decision of the Missouri Supreme Court has correctly identified the issue as involving the guardians' right to choose death for Nancy Cruzan. Its analysis is supported by the legal analyses and conclusions of other courts and jurists in cases involving similar circumstances.

Beginning in 1976 with In re Quinlan,(3) there have been more than one hundred cases involving the withdrawal of life-sustaining medical treatment or food and fluids for incompetent and, in a few cases, competent patients. The majority of states have had at least one case: twelve cases have reached the highest state courts. The number of cases has accelerated in recent years.

Beginning in 1988 those in favor of the treat in these cases were proclaiming that a "consensus" had arisen in favor of withdrawing life-sustaining food and fluids from incompetent patients. By the end of 1988, however, a counter trend emerged with roots in previous lower court opinions, in dissents in recent right to die appellate opinions, and culminating in the decisions of the Supreme Court of Washington in In re Grant,(4) the New York Court of Appeals in In re Westchester County Medical Center,(5) and the Missouri Supreme Court in Cruzan v. Harmon.(6) In these three cases state supreme courts refused to authorize the withdrawal of food and fluids from incompetent patients who were not terminally ill, absent in informed refusal of care by the patient while the patient was competent.

The Cruzan court refused to define feeding by tube as medical treatment, since "common sense tells us that food and water do not treat an illness, they maintain a life."(7) The Grant plurality agreed and stated "that the right to face an inevitable and imminent death in a manner most consistent with our beliefs and with our dignity as humans is vital.... [However,] by authorizing the withholding of intravenous nutrition and hydration, [the court would be authorizing] death by starvation and dehydration. . . . [F]or all intents and purposes the [court would be authorizing] mercy killing, arguably of a cruel nature."(8) The New York Court of Appeals viewed the issue as whether Mary O'Connor intended "to choose death by starvation and thirst in her present condition."(9) Thus, the nature of withdrawal of food and fluids has led these courts to view these cases as involving the right of a guardian to choose death for an incompetent patient. They then concluded that the respective guardians have no right to choose death for their wards.

Even those courts that authorized guardians to choose death for their wards expressed a certain amount of unease in their opinions. Many called upon the state legislature to create standards governing these cases on the basis that they are better able to deal with the complex issues of medicine, law, and ethics that are involved.(10) For instance, Justice Handler of the New Jersey Supreme Court expressed discomfort when he said:

In the final analysis, we are struggling to structure a decisional

framework that will generate trust, confidence and acceptance.

Our unease and dissatisfaction with particular right to die opinions

mirror our failure thus far to achieve this level of assurance.

The problems of trust and distrust however over these cases. . . . Decisions

of such painful difficulty cannot be so easily rejected or

so quickly applauded. Given... the complexity of the issues involved

in the right to die cases, no substantive or procedural standard

will ever be able completely to dispel or hide the doubt

engendered by those treatment decisions; achievement of trust

and confidence will be painstaking.(11)

Thus, courts on both sides of the issue demonstrate a recognition that a choice of death is the crux of the matter. This recognition of the issue as involving a choice of death by a guardian for an incompetent ward supports the Missouri Supreme Court's analysis and holding that neither common law nor constitutional law justifies such a choice for Nancy Cruzan.

Feeding by Tube Is in the Ward's Best Interests

The decision of the Missouri Supreme Court is also supported by the medical facts, which demonstrate that feeding by tube is in the ward's best interests. When a patient is unable to take nutrients by mouth, feeding by tube is in the person's best interests. The only exception| to this rule is when the person's death is imminent.(12) In order to properly evaluate the benefits and burdens of feeding by tube, it is necessary to understand something of the history of feeding by tube, the necessity of feeding by tube for patients with various disabilities, the physical burdens of feeding by tube, and the economic burdens of feeding by tube. Only after evaluating such information can feeding by tube be seen for what it is, an alternative to oral ingestion of required nutrients.

Feeding by Tube Has a Long History

John Hunter, a well respected American doctor and surgeon, is credited with using nasogastric feeding tubes for the first time in 1790 for the benefit of a patient who was paralyzed.(13) Dr. Hunter, in a speech on September 21, 1790, described the benefits of feeding by tube for patients suffering paralysis of the throat preventing swallowing.

As this disease is only rendered dangerous from the want of a

substitute for deglutition [swallowing], it becomes our duty to

adopt some artificial mode of conveying food into the stomach,

by which the patient may be kept alive while the disease continues,

and such medicines may be administered as are thought conducive

to the cure.(14)

The first nasogastric feeding tube was fashioned from a fresh eel-skin. The patient received feedings twice daily and eventually recovered.(15)

Stomachs were first operated on by Hippocrates, Galen, and others to repair injuries caused by stab wounds received in combat.(16) The first operations performed on stomachs, other than for repair, occurred in the fifteenth century for the removal of objects swallowed accidentally.(17)

In 1812, Dr. Philip Physick made use of the first stomach tube to cleanse the stomachs of three mohth old twins who had been given an overdose of laudanum.(18) In 1822, Dr. William Beaumont, a United States Army surgeon, was the first person to insert food into the stomach of a patient and observe digestion.(19) The patient, Alexis St. Martin, was the victim of an accidental musket shooting. He was the first person to live in health with a permanent opening into the stomach (Dr. Beaumont was unable to close the severely perforated stomach).(20)

In 1837, Egeberg, a Norwegian Army surgeon lecturing in Copenhagen, first proposed a gastrostomy - the "creation of an artificial opening into the stomach from the outside for the purpose of introducing food or medications."(21) He explained: "I cannot see why the indications should not be just as great to open the intestinal canal to put nourishment in as to open it to take a foreign body out."(22) In 1845, a French surgeon, Sedillot of Strasbourg, was credited with performing the first gastrostomy on a patient with cancer of the esophagus.(23)

In 1856, the renowned Strasbourg surgeon Fontan invented the first serviceable tube with a valve-like mechanism at the stomach end, which prevented leakage.(24) By 1930, Denk, professor at the University at Graz, Austria, was routinely performing gastrostomies for young suicide attempters who had swallowed lye.(25) Thus, feeding by tube has a long and profound history of...