Natural Death Acts
Natural Death Acts (also known as Death with Dignity Acts and Living Will Acts) are laws that determine in what situations, and how, people can refuse life-sustaining medical interventions. The purpose of these laws is to permit patients to choose a "natural" death, unencumbered by medical technology. The laws are a response to the great strides made by medical science over the last half of the twentieth century in prolonging the life of the chronically and severely ill. Concerns arose that medical technology that could forestall death, such as respirators and feeding tubes, increased the agony of dying. It also spawned concerns that an individual's right to autonomy and self-determination could be infringed by such invasive technology.
Origins in the United States
The first law in the United States that clarified the right of persons to refuse life-sustaining medical technology was passed in California in 1976. It permitted patients whose condition was terminal and death imminent to stop or refuse medical treatment. Throughout the late 1970s and 1980s other states began passing similar laws. At the start of the twenty-first century, every state had laws protecting the rights of dying patients.
There are several legal principles underlying these laws. The common law recognizes the right of each individual to control his own person without interference from others. This right extends to the medical arena, requiring doctors to obtain the consent of their patients before treating them. As stated by U.S. Supreme Court Justice Benjamin Cardozo, "every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable" ( Schloendorff v. Society of New York Hospital, 1914). This consent must be informed, requiring doctors to disclose the nature of what they are doing and the risks and benefits. The principle of informed consent to medical procedures governs all medical care, including life-sustaining treatment, and includes the right to refuse such treatment.
The U.S. Constitution also protects the right of dying patients to refuse medical care. This right was first established in the case of In re Quinlan, decided by the New Jersey Supreme Court in 1976. It involved a twenty-one-year-old woman who had been placed on a respirator after she stopped breathing for unexplained reasons and then entered a chronic persistent vegetative state. The court granted her parents' request for removal of the respirator, finding that it infringed upon her right to privacy as protected under the Constitution. Fourteen years later, the U.S. Supreme Court, in the case of Cruzan v. Director, Missouri Department of Health, also involving a young woman in a coma, found that the Fourteenth Amendment to the Constitution, which provides that a person may not be deprived of her liberty without due process of law, includes a liberty interest in refusing heroic medical measures.
These legal principles are embodied in Natural Death Acts, which outline the procedures for exercising the right of dying patients to refuse life supports. Because many dying patients are incompetent at the time the crucial decision to withdraw or refuse life supports must be made, these laws provide mechanisms for patients to exercise their rights in advance. The primary mechanism is the advance directive, which is a statement, usually in writing, that declares what kind of lifesaving medical treatment a patient wants after he has become incompetent or unable to communicate to medical personnel. One form of an advance directive, the living will, provides specific instructions on whether or not a person wants to accept life-sustaining medical interventions. Another form of advance directive is a health care proxy (or power of attorney), which appoints another person to make the decision and which may also include instructions on life supports. The laws also set forth what is required to prove the wishes of the patient when he has failed to complete an advance directive. Many Natural Death Acts also provide for the appointment of a surrogate decision maker.
While each state has its own Natural Death Act, there is also a federal law, the Patient Self-Determination Act (PSDA), which is designed to encourage patients to exercise their rights by completing advance directives. The PSDA requires hospitals, health maintenance organizations, and others that receive federal funds to tell patients of their rights under the applicable state law to make end-of-life medical decisions. The PSDA also requires that advance directives be maintained in patients' charts.
Despite these laws, the vast majority of people—between 80 and 90 percent—never execute advance directives. Nevertheless, largely through the passage of such laws, and the publicity generated by various right-to-die cases, a consensus has emerged over the years that patients have a right to refuse life-sustaining medical intervention. In one poll, 84 percent of Americans said they would not want life supports if they had no chance of recovery. How far that right should extend, however, is still a matter of controversy.
Initial opposition to the "right to die" was based on a state's interest in protecting the sanctity of life, preventing suicide, and protecting innocent third parties (i.e., a patient's children). These interests, however, become less significant in cases where a patient is terminally ill or severely incapacitated with no hope of improving. The ethical integrity of the medical profession, whose primary mission is to enhance life, is also cited as a reason for opposing the right to die. Nevertheless, virtually every professional organization, including the American Medical Association, recognizes that patient autonomy and good medicine may require the withdrawal of life supports. Natural Death Acts also typically include a "conscientious objection" exception that permits physicians with religious or moral objections to refuse to honor a request to withhold or withdraw life supports so long as alternative accommodations, such as transfer to another hospital, are made.
Natural Death Acts also do not distinguish between withholding and discontinuing life supports. Thus, for example, removing a ventilator from a patient is considered the same as never starting it. One reason for this is that it encourages heroic measures be taken in times of uncertainty, with the understanding that they can be discontinued at a later point if found to be of little benefit or a burden to the patient.
There is some disagreement over whether nutrition and hydration should be treated the same as other forms of mechanical life support, such as respirators. This is primarily because of the emotional and symbolic significance of food and water. To some, withholding water and food, even if it must be supplied though such mechanical means as inserting a gastrostomy tube in a patient's stomach, is causing death by starvation or thirst. Courts, however, do not distinguish between the two, viewing artificial nutrition and hydration as medical interventions as invasive as other forms of life-sustaining technology. Many Natural Death Acts, however, do treat the provision of nutrition and hydration differently. Some prohibit their withdrawal (although a court will likely ignore this prohibition). Others require people completing a living will to explicitly state whether artificial hydration and nutrition is to be included as a form of life support.
Whether the right to die includes the right to ask others, such as a physician, for assistance in dying, is an intensely debated issue. Such assistance usually means the prescription of drugs, self-administered by the patient, which will hasten death. Physicians do engage in the practice, but until the late twentieth century remained silent about it. In 1991 the physician Timothy Quill brought the issue to the public's attention by publishing an article in the New England Journal of Medicine describing how he provided a prescription of barbiturates to a patient with instructions on how to use them to hasten the patient's death. A subsequent study, published in the New England Journal of Medicine in 1996, found that 20 percent of the physicians surveyed had knowingly and intentionally prescribed medication to hasten a patient's death. Other times, physicians will prescribe medication to ease pain, knowing that it will hasten death.
There appears to be some support for physician-assisted suicide among the general public. The same 1996 New England Journal of Medicine study found that 66 percent of the public supported its legalization. Supporters of the right contended that there was no difference, in hastening death, between the removal of life supports and the self-administering of a prescribed drug. They contended that writing a prescription required a less active role for the physician than physically removing equipment and caused less agony and pain.
Opponents believed that permitting assisted suicide violated the sanctity of life, and would open the door to more active forms of euthanasia, such as a physician administering a lethal injection or even ending a patient's life without his or her consent. They were also concerned that elderly and dependent people, who might perceive themselves as a burden to family and society, would feel an obligation to die sooner rather than later if physician-assisted suicide were made legal. They also argued that it would change the role of the medical profession from protectors of life to agents of death. As of 2001, the American Medical Association (AMA) opposed physician-assisted suicide, because "the physician's role is to affirm life, not to hasten its demise." Instead, the AMA recommended that physicians focus on making the dying more comfortable through the provision of palliative care which seeks to provide comfort, not a cure, including the full use of pain medication (even if it hastened death).
The law has been hesitant to recognize a right to assisted suicide. In 2001 every state, except Oregon, had laws prohibiting assisted suicide, making it illegal for anyone, including physicians, to assist in another's death. In 1997 the U.S. Supreme Court, in the case of Vacco v. Quill, refused to overturn such laws on the grounds that they violated a person's constitutional right to privacy. The Court distinguished between the right to refuse life-sustaining medical interventions and requesting that affirmative acts be taken, such as prescribing a lethal dose of drugs, to hasten death. The Court explained the distinction by noting that "when a patient refuses life sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication."
The Court left it to individual states to decide whether to legalize physician-assisted suicide. The only state to do so was Oregon, which passed the Death with Dignity Act in 1994, permitting physicians to prescribe medication that enhanced death, generally barbiturates, to patients under certain circumstances. It applied only to terminally ill persons with less than six months to live. Two physicians had to agree on the prognosis. A referendum to appeal the act was rejected by 60 percent of Oregon voters, thus demonstrating that there was considerable public support for physician-assisted suicide. As of 2001, only a handful of people had requested assisted suicide since the law went into effect. The law has also been upheld by the federal courts.
The Exceptional Case of the Netherlands
Most other countries recognize the right to refuse life-sustaining treatment but do not recognize the right to physician-assisted suicide. The one exception is the Netherlands, which permits not only assisted suicide but also other more active forms of euthanasia, including permitting a physician to actually administer the cause of death, such as a lethal injection. This right was first recognized by the Dutch Supreme Court, who excused from criminal culpability physicians who assist in the suicide of a dying patient when ethics and the good practice of medicine required it. It has since been codified into law, which requires that the patients are competent, have voluntarily and repeatedly over time requested assistance in dying, and are enduring unacceptable suffering, and where a second physician agrees assisted suicide is appropriate. A commission to study the effects of this initially judicial-made law, the Remmelink Committee, found that 2,300 deaths resulted from euthanasia in 1990. It is not known whether any of these deaths were involuntary, a concern of people who oppose assisted suicide. Some contend that the rates of euthanasia in the Netherlands are no different than those in other countries, just more visible.
The Societal Consensus
By the early twenty-first century, the existence of Natural Death Acts in every U.S. state reflected a societal consensus that people should be able to control the manner and timing of their own death in the face of medical technology able to prolong life. There were limits, however, to this right. Physician-assisted suicide and more active types of euthanasia had not, with some exceptions, been recognized under the law.
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