Saturday, January 21, 2006

What Is the Legal Basis for Withdrawing Hydration & Nutrition Administered by Tube?

In Texas, hydration and nutrition administered by a tube is included in the definition of "life-sustaining treatment."

"Life-sustaining treatment" means treatment
that, based on reasonable medical judgment, sustains the life of a
patient and without which the patient will die. The term includes
both life-sustaining medications and artificial life support, such
as mechanical breathing machines, kidney dialysis treatment, and
artificial nutrition and hydration
. The term does not include the
administration of pain management medication or the performance of
a medical procedure considered to be necessary to provide comfort
care, or any other medical care provided to alleviate a patient's
Texas Health & Safety Code § 166.002(emphasis added)

Because it is included in this definition, it can be withdrawn from a patient under other provisions of the law. It makes no sense to me that food and water, however administered, should be considered a medical "treatment." As Wesley J. Smith notes, the only outcome one can expect from withdrawal of food and water is certain death. Withdrawal of other treatments does not always result in death. There are medical miracles, and there are recoveries that cannot be explained by doctors.

Wesley J. Smith weighs in on the Haleigh Poutre story...

Nutritional termination can only have one result: Death. As a consequence, I believe the decision to withdraw or withhold such care should be treated differently than other such decisions. Benefits of doubt should go to providing nutritional sustenance. Indeed, in my view, absent clear written instructions by the patient or the presence of other urgent medical issues, dehydration should never be done based on the decisions of others, particularly if they are steeped in quality of life considerations about the lack of a life worth living.

For more information on this issue read Mr. Smith's article Dehydration Nation. Here is a taste:

The great Christian bioethics pioneer Paul Ramsey, author of the seminal book The Patient as a Person, worried presciently that surrogate decision making could endanger the lives of people who were seen as devalued. Thus, while Ramsey believed that people should be allowed to refuse treatment for themselves on a subjective quality-of-life basis, he urged that decisions made on behalf of others be strictly based on medical needs. Otherwise, he wrote, we could be shifting “the focus from whether treatments are beneficial to patients to whether patients’ lives are beneficial to them.”

Also, consider this:

It has even gotten to the point that courts may hold disabled people to past statements that they would want to die over present indications that they want to live—as the trial judge in Michael Martin’s case did.

The worst of these cases of which I am aware is the tragic dehydration of Marjorie Nighbert. Marjorie was a successful businesswoman until a stroke left her disabled. She was unable to swallow safely, but not terminally ill. She was moved from Alabama to a nursing home in Florida where she would receive rehabilitation to help her relearn how to chew and swallow without danger of aspiration. A feeding tube was inserted to ensure that she was properly nourished during her recovery.

Marjorie had once told her brother Maynard that she didn’t want a feeding tube if she were terminally ill. Despite the fact that she was not dying, Maynard believed that she had meant that she would rather die by dehydration than live the rest of her life using a feeding tube. Accordingly, he ordered all of Marjorie’s nourishment stopped.

As she was slowly dehydrating to death, Marjorie began to beg the staff for food and water. Distraught nurses and staff members, not knowing what else to do, surreptitiously snuck her small amounts. One staffer—who was later fired for the deed—blew the whistle, leading to a hurried court investigation and a temporary restraining order requiring that Marjorie receive nourishment.

Circuit Court Judge Jere Tolton appointed attorney William F. Stone to represent Marjorie and gave him twenty-four hours to determine whether she was competent to rescind the general power of attorney she had given to Maynard before her stroke. After the rushed investigation, Stone was forced to report that Marjorie was not competent at that time. (She had, after all, been intentionally malnourished for several weeks.) Stone particularly noted that he had been unable to determine whether she had been competent at the time the dehydration commenced.

With Stone’s report in hand, Judge Tolton ruled that the dehydration should be completed! Before an appalled Stone could appeal, Marjorie died on April 6, 1995.

Quite simply, hydration and nutrition should not be considered a "life-sustaining treatment".