Earlier cases established the principle that an incompetent patient has the same right as a competent patient to accept or reject medical treatment. These cases involved such treatments as chemotherapy, dialysis, respiration, and the issue of life-saving treatments. Each of these cases involved invasive treatments that had side effects. Now courts are being asked to extend the incompetent patient's right of self-determination to less invasive treatments such as artificial feeding. In other words, where the courts previously acknowledged an incompetent patient's right to refuse intrusive life-sustaining treatments, courts are being asked to extend this right to the removal of feeding tubes. (This is the position taken by the Massachusetts Medical Society in a recently adopted policy.)
The right to remove the feeding tube from an incompetent nonvegetative patient was first raised before the New Jersey courts. The case involved Claire Conroy who was described as an 84-year-old woman with organic brain syndrome and other ailments who was totally dependent on a feeding tube for nourishment and nutrients. A lower court held that her life had become impossibly and permanently burdensome and that the nasogastric tube should be removed. The judge based his conclusion, in part, on the patient's inability to swallow.
An appeals court reversed this decision, and the case was recently decided by the New Jersey Supreme Court. In its January 1985 decision the court extended the incompetent patient's right of self-determination with regard to feeding devices if the patient is elderly, in a nursing home, suffering from serious and permanent mental or physical disabilities, and is given no more than a year to live. (Interestingly enough, evidence adduced at trial showed that Conroy was not in a chronic vegetative state, and was not terminally-ill.) Though this case has received recent notoriety, its rule is not applicable to those in a persistent vegetative state. The court distinguished elderly nursing home patients from. comatose patients because the former are more vulnerable, without surviving family, and have limited medical care, among other reasons. Those in a vegetative condition tend to have an unknown survival rate, to be young with surviving family, and to be actively receiving medical care.
Cases involving an incompetent patient's right of self-determination to withhold life-saving (not life-sustaining) treatment often focus on the patient's condition and prognosis because the state's countervailing interest in saving a life is affected by whether the incompetent patient has a fatal condition or a curable one. However, the medicolegal issue with patients who are in a persistent vegetative state is not life-saving treatment as much as it is life-sustaining treatment since patients in a chronic vegetative state are not necessarily terminal unless some other underlying disease or condition such as leukemia' or end-stage renal disease is present. Comatose patients may have their health compromised by secondary complications, but these complications can be treated with noninvasive measures (e.g., antibiotics). As long as secondary complications are actively treated, the comatose patient's survival becomes more dependent on other life-sustaining treatments such as respiration and artificial feeding. The issue of withdrawing life-sustaining measures such as respiration from a comatose patient was answered in Quinlan, but now the question of withdrawing life-sustaining treatment such as artificial feeding from a comatose patient is being raised.
In a recent lower court decision involving a former fire fighter named Paul Brophy, a Massachusetts court carved an exception to the general notion that competent and incompetent patients have a right under Massachusetts law to decline treatment especially when it involves highly intrusive procedures that serve only to keep them alive. In ordering that the feeding tube not be disconnected, the judge noted that this comatose patient is not terminally ill and that the feedings do not constitute an invasive procedure. (Interestingly, the judge did comment that the surgical insertion of the stomach tube could have been considered invasive.) The case is on appeal.
The court, on one hand, will be asked to draw no distinction among withdrawing life-sustaining treatments. Opponents, on the other hand, will argue that unlike Claire Conroy, this patient is comatose, not terminally ill, not vulnerable, and not without family, and that artificial feeding is a noninvasive treatment, all requiring the continuance of the artificial feeding. Meanwhile, those who treat patients in persistent vegetative state debate their obligation to continue life-sustaining treatments. It is hoped that guidance will be forthcoming.
1.Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E. 2d 417 (1977).
2.In the Matter of Earle N. Spring, 380 Mass. 629, 405 N.E. 2d 115 (1980).
3.In the Matter of Karen Quinlan, 137 NJ. Super.227, 348 A.2d 801 (NJ. Super. Ch. 1975), Modified and remanded, 70 NJ. 10, 355 A.2d 647 (NJ. 1976), cert. denied sub. nom. Garger v. New Jersey, 429 U.S. 922 (1976).
4.In the Matter of Shirley Dinnerstein, 6 Mass. App. 466, 380 N. E. 2d 134 (1978).
5.The Boston Globe, May 23, 1985, at 29, col. 3.
6.in the Matter of Claire C. Conroy, 188 NJ. Super. 523, 530, 457,k2d 1232, 1236 (NJ. Super. Ch.), reversed, 190 NJ. Super. 453, 464 A.2d 303 (NJ. Super. A.D. 1983), revened, 98 NJ. 321, 486 A.2d 1209 (NJ. 1985).
7.In the Matter of Claire C. Conroy, 190 NJ. Super. 453, 464 A.2d 303 (NJ. Super. kD. 1983), reversed 98 NJ. 321, 486 A.2d 1209 (NJ. 1985).
8.In the Matter of Claire C. Conroy, 98 NJ. 321, 486 A.2d 1209 (NJ. 1985).
9.Commissioner of Corrections v. Kenneth Myers, 379 Mass. 255, 399 N.E. 2d 452 (1979).
10.The Boston Globe, October 23, 1985, at 1, col. 4.