Nutrition and Hydration under Ohio's DPAH: Judicial Misconstruction Threatens the Right to Choose Death with Dignity

Document Type

Article

Publication Title

Cleveland State Law Review

Abstract

Years ago, life and death were as distinguishable as black and white. Simple definitions sufficed: Death was pronounced when the heart and lungs ceased to function. As medical technology became more complex in its ability to save lives, so did the definition of life itself. In 1968 the Harvard Ad Hoc Committee published guidelines for determining whether someone had died. They suggested that a dead person would: 1) be unresponsive to and unaware of external stimuli; 2) have no spontaneous respiration; 3) lack reflexes of any sort; and 4) have a flat electroencephalogram, or EEG. Even this definition became outdated. In 1981 the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research suggested the adoption of a definition of death formulated by the American Bar Association, the American Medical Association, and others. This definition states that a dead person is one who has either sustained (1) "irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem. ' Ohio's definition of death adopts the criterion suggested by the President's Commission. The difficulty with this definition, however, is that it does not account for people like Karen Quinlan and Nancy Cruzan who, although not dead by any definition, are on the blurry boundary between life and death. Unaccounted for in this definition of death are those who suffer such severe brain damage that they are irreversibly doomed to a non-cognitive life, artificially sustained by mechanical support of their vital biological functions. In the past, those who are now resuscitated with modern technological procedures such as electrical impulses to the heart, artificial respirators, and nutrition and hydration apparatus, would have simply died. While medical technological advances in aggressive life support systems should be heralded as a tribute to man's triumph over death (particularly in cases where the individual can return to a cognitive lifestyle), these advances should not force each person to hang on to his life indefinitely, just because technology now permits him to do so. Many feel alienated and frightened by apparatus that simply prolongs their dying process. By 1977 greater than 70% of the nation's population died in institutions such as hospitals, nursing homes, or other long-term care institutions. This number had been increasing over the decades and is now estimated to be over 80%. Many never regain cognition. Recent count indicates that 10,000 Americans now remain, for whatever reason, in an incurable and persistent vegetative condition,9 trapped in a state of life made possible by aggressive life support systems. A dilemma exists: How do these non-cognitive individuals fit into the legal definitions of life and death? What rights do they, their guardians, or others have in decisions concerning artificial life support, including nutrition and hydration? To resolve the dilemma, a policy based on sound reasoning needs to be established in Ohio to determine if and when the termination of life support, including nutrition and hydration, can occur. Recently, Ohio has had two chances to formulate a policy concerning the withdrawal or refusal of artificial means of administering food and water. First, in September, 1989, the Ohio legislature enacted a statute, the Durable Power of Attorney for Health,1' which permits a competent Ohio adult to grant the power to another designated competent adult to make certain health care decisions for them in the event of their later incompetency. This statute details when an attorney in fact may refuse or withdraw nutrition and hydration from the incompetent who had completed the DPAH document.'- The statute also indicates what commonlaw rights remain in a guardian who may or may not be the attorney in fact, independent of the additional powers granted by the statute. Second, in August, 1989, the Montgomery County Court of Appeals in Couture v. Couture," interpreted the Durable Power of Attorney for Health statute (DPAH) as forbidding the withdrawal or refusal of artificial means of nutrition and hydration where death was not imminent, notwithstanding the consent of the individual. For that reason, the Couture court refused to grant permission to remove the nasogastric tubing from a young man who had lapsed into a persistent vegetative state as a result of his medication (a risk known to the patient). The court refused to grant permission even though it accepted the finding that Mr. Couture's expressions that he not be maintained by any artificial life support in the event of this precise occurrence were sufficient to "support the substituted judgment of the guardian." The reasoning in the Couture decision is questionable. The policy expressed by the court based on their interpretation of the DPAH is not supported by either an analysis of statutory language or legislative intent, according to Senator Richard Pfeiffer, the sponsor of the DPAH legislation." In addition, the Couture court's assertion that consent is an unimportant factor in the decision whether or not to withdraw nutrition and hydration is highly questionable in light of Cruzan v. Director, Missouri Department of Health. In Cruzan, the Court recognizes the importance of the common-law doctrine of informed consent, assumes the existence of constitutional rights permitting consent to withdraw from artificial life support mechanisms," and leaves the question of how to enforce such rights in the hands of the states. Therefore, given the suspect logic, reasoning, and statutory interpretation of the Couture court, it seems unlikely that the decision will stand the test of time as a coherent expression of Ohio's policy concerning the refusal or withdrawal of nutrition and hydration. To formulate a soundly reasoned policy, Ohio needs to reexamine its own common law, case law from sister states, and the Durable Power of Attorney for Health statute. In order to clarify existing patient and guardian rights, the formulated policy must determine in particular whether or not to consider nutrition and hydration mechanisms in the same light as other life support systems.

First Page

279

Last Page

313

Publication Date

1990

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