The role of courts in terminating nutrition and hydration for incompetent patients.

• Author: Wintersheimer, Donald C.
• Position: Response to article by Charles M. Leibson in this issue, p. 437

This is a review of issues considered in a recent Kentucky Supreme Court opinion(1) in which a majority of the court authorized the discontinuance of gastrostomy tubes used to provide nourishment and water to an incompetent person. Joined by Justice Reynolds, the author dissented in the case. In this article I will explain why I respectfully differ with my colleague, Justice Charles M. Leibson, who wrote the majority opinion.

The Issue

The issue presented by this type of case is how a civilized society reacts when an individual is incompetent to express her own wishes and when the entire family, medical caregivers, and hospital endorse the belief that she should be allowed to die. The individual circumstances are very tragic and have undoubtedly caused the members of the family serious anguish.

One of the major problems unique to any serious discussion of the so-called right-to-die issues is the frequent merger of the concepts regarding passive withdrawal of nutrition and hydration, or food and water, and active, outright mercy killing, or euthanasia, by a positive, allegedly humane means. Inherent in any such dispute over terms and their definition is the further question of the voluntary or involuntary nature of either course of conduct and the capacity of the human being who is the subject of the action in question.

For the purpose of this article only, I shall accept the idea of merger for the simple reasons that it is so common and the terms of the debate have already been defined by those who support or tolerate the proposition favoring withdrawal under most circumstances.

Death is always a very private and personal matter, essentially between the individual and the Creator. However, in certain circumstances, there can be a great effect upon other people, both directly and indirectly. Human beings are endowed by their Creator with an independent free will. Such free will can be absolutely exercised, subject only to moral accountability. The role of courts and governments in such an equation should be passive and is highly questionable.

It is refreshing to realize that our civilization has reached a degree of civility that almost requires resort to the legal system to determine many questions of social policy. As important as such a concept is, it can still be overdone. Unfortunately, the legal system can become the tool of those who would seek a kind of judicial approval for their particular ethical or moral behavior. We frequently hear cries that any particular course of conduct is constitutional or unconstitutional or that it is against the law. The law is important in any orderly society, but it is not the only force that provides for the development of civilization. As recognition of religious values diminishes, there is an increased effort to invoke the law or a system of laws as a kind of secular morality.

The role of peer pressure or the approval of others in society generally should not be discounted in our modern or contemporary culture. Against this kind of background, we must analyze the request of a person who is charged with the responsibility of giving care to an incompetent person.

As expressed in my dissent in DeGrella,(2) the intervention into private decisionmaking is expensive and intrusive. The right to terminate medical treatment is not a power belonging to the judiciary to grant or withhold. This particular case was presented to our court only because the attending physicians and the nursing home did not believe they could recognize the wishes of the family as surrogate decisionmakers to refuse nutrition on the patient's behalf.

It must be recognized, first, that there is a considerable difference between the withdrawal of food and water, also called nutrition and hydration, and the withholding of medical treatment. in the DeGrella case, the majority opinion mixes these concepts by stating that artificial feeding of a patient by a tube amounts to extraordinary medical treatment. The patient was not being treated but was being maintained through nourishment. Treatment ordinarily means an attempt to relieve either the symptoms or cause of a medical disorder. Nutrition relates directly to the maintenance of life itself, regardless of medical condition.

The California Supreme Court recently held that a physician has no duty to continue life-sustaining procedures for a prisoner with quadriplegia and that such procedures cannot be imposed on the prisoner.(3) The prisoner, Howard Andrews, was serving a life term when he suffered a fracture of a cervical vertebra, rendering him quadriplegic. As a result, he lacked any physical sensation or control of his body below the shoulders, and he required assistance in the performance of all bodily functions. He refused to consent to the provision of nutrition or the administration of medication by means of a feeding tube. Andrews was competent to make such a decision and was fully aware of the consequences. The court held that there was no state interest sufficient to override Andrews's judgment in such circumstances.(4) This situation is totally different, however, from that of cases involving legally incompetent persons.

The condition of the ward, or patient, is of paramount importance in considering any individual case. In DeGrella the patient had a persistent unconscious condition and was unable to eat, chew, or swallow. She received food and water by means of a tube that had been surgically inserted into her abdomen. Without the sustenance provided through the tube--which the court authorized to be withdrawn--she died within twelve days. The evidence presented to the court indicated that she experienced no discomfort or pain from the use of the feeding tube. Although the medical literature contains documented instances of individuals who have partially or fully recovered from this condition, the general medical consensus was and continues to be that a persistent unconscious condition is irreversible and that there is little chance for recovery.

The patient in DeGrella had not executed what is now known as a "living will" pursuant to Kentucky statute,(5) either specifying her treatment wishes or designating a health care surrogate to make such decisions on her behalf. She could not have done so prior to her injury in 1983 because such statutes did not exist in Kentucky at that time. Under such circumstances, the person receiving food and water by feeding tube is at the mercy of those providing such maintenance. The person is totally helpless and vulnerable. The greater issue concerns the fundamental civil right of a person with a disability, regardless of its severity, to continue receiving life-sustaining treatment, food and water maintenance care, or other health care services, including personal care and rehabilitation.

It is understandable that compassionate individuals would want to alleviate the unnecessary suffering of another human being. The real problem, however, is where we draw the line between withdrawing extraordinary medical treatments, withdrawing attendant maintenance such as food and water, and outright mercy killing. The problem is not new. It is as old as recorded history. There are many people even today who do not understand what euthanasia, or mercy killing, means, despite the fact...