Mitchell Hamline School of Law Mitchell Hamline Open Access Faculty Scholarship 2011 Voluntarily Stopping Eating and Drinking: A Legal Treatment Option at the End of Life Thaddeus Mason Pope Mitchell Hamline School of Law, [email protected] Publication Information 17 Widener Law Review 363 (2011) Repository Citation Pope, Thaddeus Mason, "Voluntarily Stopping Eating and Drinking: A Legal Treatment Option at the End of Life" (2011). Faculty Scholarship. Paper 278. http://open.mitchellhamline.edu/facsch/278 This Article is brought to you for free and open access by Mitchell Hamline Open Access. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. Voluntarily Stopping Eating and Drinking: A Legal Treatment Option at the End of Life Abstract Despite the growing sophistication of palliative medicine, many individuals continue to suffer at the end of life. It is well settled that patients, suffering or not, have the right to refuse life-sustaining medical treatment (such as dialysis or a ventilator) through contemporaneous instructions, through an advance directive, or through a substitute decision maker. But many ill patients, including a large and growing population with advanced dementia who are not dependent upon life-sustaining medical treatment, do not have this option. They ah ve the same rights, but there is simply no life-sustaining medical treatment to refuse. Nevertheless, these patients have another right, another option to avoid suffering at the end of life. Patients with decision-making capacity may choose (through contemporaneous instructions) to voluntarily stop oral eating and drinking to accelerate the dying process. Moreover, patients without capacity often have the same option. Voluntarily stopping eating and drinking (VSED) is a clinically validated “exit option” that enables a good quality death. Significant and growing evidence supports VSED as a means of accelerating the dying process. Nevertheless, VSED is widely resisted by healthcare practitioners either because they think that it is illegal or because they are uncertain of its legality. There has been little legal analysis of a right to VSED. In this Article, we aim to fill this gap and to clarify the legal status of VSED. Specifically, we argue that both contemporaneous and (most) non-contemporaneous decisions for VSED are legally permissible. Individuals may refuse nutrition and hydration just as they may refuse other intrusions on their personal autonomy. This right is grounded in the common law of battery, statutes, state constitutions, and even the U.S. Constitution. Moreover, VSED does not, as many believe, constitute abuse, neglect, or assisted suicide. Even ex ante decisions for VSED (exercised through an advance directive or a surrogate decision maker) are legal in most United States jurisdictions. Keywords Medical futility, End-of-life, Elder law, Death, Litigation, Voluntarily stopping eating and drinking, Palliative medicine Disciplines Elder Law | Medical Jurisprudence This article is available at Mitchell Hamline Open Access: http://open.mitchellhamline.edu/facsch/278 VOLUNTARILY STOPPING EATING AND DRINKING: A LEGAL TREATMENT OPTION AT THE END OF LIFE TIL\DDEUS iVL\SoN POPE' LINDSEY E. ANDERSON** ABSTRACT Despite the growing sophistication of palliative medicine, many individuals continue to suffer at the end of life. It is well settled that patients, suffering or not, have the right to refuse life-sustaining medical treatment (such as dialysis or a ventilator) through contemporaneous instructions, through an advance directive, or through a substitute decision maker. But many ill patients, including a large and growing population with advanced dementia who are not dependent upon life-sustaining medical treatment, do not have this option. They have the same rights, but there is simply no life-sustaining medical treatment to refuse. Nevertheless, these patients have another right, another option by which to avoid suffering at the end of life. Patients with decision-making capacity may choose (through contemporaneous instructions) to voluntarily stop oral eating and drinking in order to accelerate the dying process. Moreover, patients without capacity often have the same option. Voluntarily stopping eating and drinking (VSED) is a clinically validated "exit option" that enables a good quality death. Significant and growing evidence supports VSED as a means of accelerating the dying process. Nevertheless, VSED is widely resisted by healthcare practitioners either because they think that it is illegal or because they are uncertain of its legality. There has been little legal analysis of a right to VSED. In this Article, we aim to fill this gap and to clarify the legal status of VSED. Specifically, we argue that both contemporaneous and (most) non-contemporaneous decisions for VSED are legally permissible. Individuals may refuse nutrition and hydration just as they may refuse other intrusions on their personal autonomy. This right is grounded in the common law of battery, statutes, state constitutions, and even the United States Constitution. Moreover, VSED does not, as many believe, constitute abuse, neglect, or assisted suicide. Even ex ante decisions for VSED (exercised through an advance directive or a surrogate decision maker) are legal in most United States jurisdictions. * Associate Professor of Law, Widener University School of Law; Adjunct Professor of Mcdical Education, lbanv Mcdical Collegc. A version of this Article was presented at the Thirty-third Annual AS]IM' Health law Professors Conference in Austin, Texas. The authors greatly appreciate participant feedback. In addition, the authors arc deeply grateful for comments and suggestions from Judith Schwarz, Lois Shepherd, Andrew Lu, Jcremy Stone, and especially Stanley Terman. Delaware attornev; graduate of -Widener University School of Law. Widener Law Review [Vol. 17: 363 TAB]LI,',I 1 CONTINTS I. IN T RO DU CT ION ...................................................................................................364 II. BACKGROUN): RiASONS FOR HASTINING DIATH ..................................368 A . Suffering at the E nd of Life ..............................................................................369 B. Five Options for Hastening Death in Order to Avoid Suffering ........... 375 C. Choosing an Exit Option from an Incomplete Menu ..........................................382 III. VOIUNTARIIY STOPPING EATING AND DRINKING .................................383 A . Param eters of V SE D ......................................................................................385 B. H istot 'of V SE D .............................................................................................388 C. VSED Enables a GoodQualt)' Death ...........................................................389 D. VSED De)'dration versus 'Bad" De .)dration............................................... 398 IV. VSED Is LJGA],END)-(1-Liii OPTION ..................................................400 A. Disallowing VSED Can Constitute a Battei' .................................................402 B. NotAllowing VSED Vio/ates the Rfght to Rjuse Medical Treatment ............407 C. Allowing VSED Is Not Abuse and Neglect ....................................................414 D. Allowing VSED Is Not Assisted Suicide ........................................................419 V. VSED IS OFTIN AN OPTION EW7LN FOR INDIVIDUAIS WITHOUT C A P A C ITY .................................................................................................................4 2 2 A. General Rulefor Substitute Decision Making ...................................................423 B. Substantive and Procedural Limitations .............................................................424 V I. C O N C L U SIO N ....................................................................................................42 6 I. INTRODUCTION Jane is a seventy-four-year-old woman who resides in a long-term care facility in South Australia.1 She contracted polio as a child in the 1930s, and now suffers from post polio syndrome and Type 1 diabetes.2 About ten years ago, Jane noticed a right side weakness which has deteriorated to the point where she now has no use of the limbs on the right side of her body.3 -While she has some use of her left-sided limbs, movement is both extremely limited and painful. 4 Jane spends all of her waking hours in a wheelchair, and when she is in bed she is unable to move or change positions. 5 Because of these 1. II Ltd vJ & Anor [2010] SASC 176 1 2 (Austl.). The patient defendant's name was abbreviated by the court to protect her privacy. To improve readability, we call the patient "jane" instead of "J." 2. Id. 2 3. 3. Id. 3. 4. Id. 5. Id. 2011] Voluntaily Stopping Eating and Dnnking physical limitations, Jane requires assistance for all of her basic hygiene needs. 6 There is no prospect for any improvement in her condition.7 By January 2010, Jane found her existence unbearable. She determined tat she had crossed the boundary of what, for her, was a meaningful life.8 She was suffering not only physically but existentially, wracked with anguish, fear, apprehension, helplessness, despondency, dependency, and a sense of meaninglessness. 9 So Jane chose a treatment option to hasten her death on her own terms." She "asserted a right to lawfully embark upon