The National Right to Life organization has currently proposed a model legislation to be used by individual states in the U.S. which would deny any "guardian, surrogate, public or private agency, court, or any other person … the authority to make a decision on behalf of a person legally incapable of making health care decisions to withhold or withdraw hydration or nutrition from such a person…” This would be based on the presumption “ … that every person legally incapable of making health care decisions has directed his or her health care providers to provide him or her with nutrition and hydration to a degree that is sufficient to sustain life.” The exceptions, beyond the physiologic, would be “if the person executed a directive in accordance with [the state advance directive statute] specifically authorizing the withholding or withdrawal of nutrition and/or hydration, to the extent the authorization applied.” or “ if there is clear and convincing evidence that the person, when legally capable of making health care decisions, gave express and informed consent to withdrawing or withholding hydration or nutrition in the applicable circumstances.” As I read the proposal, substituted judgment, now legal and ethical in many states, would no longer apply to termination of food or fluid but would require “clear and convincing” evidence to do so. Is this legislation really in the best interest of the incapacitated patient or for promoting the further interest of organizations such as the National Right to Life? The entire model is reproduced below. ..Maurice.
MODEL STARVATION AND DEHYDRATION OF
PERSONS WITH DISABILITIES PREVENTION ACT
Section 1. Short Title
This act shall be known and may be cited as the [STATE NAME] “Starvation and Dehydration of Persons with Disabilities Prevention Act”.
Section 2. Definitions
A. “Attending physician” means the physician who has primary responsibility for the overall medical treatment and care of a person.
B. “Health care provider” means a person who is licensed, certified, or otherwise authorized by the law of this state to administer health care in the ordinary course of business or practice of a profession.
C. “Express and informed consent” means consent voluntarily given with sufficient knowledge of the subject matter involved, including a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, to enable the person giving consent to make an understanding and enlightened decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.
D. “Nutrition” means sustenance administered by way of the gastrointestinal tract.
E. “Person legally incapable of making health care decisions” means any person who:
1. Has been declared legally incompetent to make decisions affecting medical treatment or care, or
2. In the reasonable judgment of the attending physician, is unable to make decisions affecting medical treatment or other health care services, or
3. Is a minor.
F. “Physician” means a physician licensed by [relevant state statute].
G. “Reasonable medical judgment” means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
Section 3. Presumption of Nutrition and Hydration Sufficient to Sustain Life
A. It shall be presumed that every person legally incapable of making health care decisions has directed his or her health care providers to provide him or her with nutrition and hydration to a degree that is sufficient to sustain life.
B. No guardian, surrogate, public or private agency, court, or any other person shall have the authority to make a decision on behalf of a person legally incapable of making health care decisions to withhold or withdraw hydration or nutrition from such a person except in the circumstances and under the conditions specifically provided for in Section 4 of this act.
Section 4. Presumption of Nutrition and Hydration, When Inapplicable
The presumption pursuant to Section 3 of this act shall not apply:
A. To the extent that, in reasonable medical judgment:
a) provision of nutrition and hydration is not medically possible,
b) provision of nutrition and hydration would hasten death, or,
c) because of the medical condition of the person legally incapable of making health care decisions, that person would be incapable of digesting or absorbing the nutrition and hydration so that its provision would not contribute to sustaining the person’s life.
B. If the person executed a directive in accordance with [state advance directive statute] specifically authorizing the withholding or withdrawal of nutrition and/or hydration, to the extent the authorization applies.
C. If there is clear and convincing evidence that the person, when legally capable of making health care decisions, gave express and informed consent to withdrawing or withholding hydration or nutrition in the applicable circumstances.
Section 5. Civil Remedies
A. A cause of action for injunctive relief may be maintained against any person who is reasonably believed to be about to violate or who is in the course of violating this act, or to secure a court determination, notwithstanding the position of a guardian or surrogate, whether there is clear and convincing evidence that the person legally incapable of making health care decisions, when legally capable of making such decisions, gave express and informed consent to withdrawing or withholding hydration or nutrition in the applicable circumstances.
B. The action may be brought by any person who is:
(a) The spouse, parent, child, or sibling of the person;
(b) A current or former health care provider of the person;
(c) A legally appointed guardian of the person;
(d) The state protection and advocacy agency, or
(e) A public official with appropriate jurisdiction to prosecute or enforce the laws of this state.
C. Pending the final determination of the court, it shall direct that nutrition and hydration be provided unless it determines that Section 4A is applicable.
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