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Voluntarily Stopping Eating and Drinking: A Normative Comparison with Refusing Lifesaving Treatment and Advance Directives

Published online by Cambridge University Press:  01 January 2021

Paul T. Menzel
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Abstract

Refusal of lifesaving treatment, and such refusal by advance directive, are widely recognized as ethically and legally permissible. Voluntarily stopping eating and drinking (VSED) is not. Ethically and legally, how does VSED compare with these two more established ways for patients to control the end of life? Is it more questionable because with VSED the patient intends to cause her death, or because those who assist it with palliative care could be assisting a suicide?

In fact the ethical and legal basis for VSED is virtually as strong as for refusing lifesaving treatment and less problematic than the basis for refusing treatment by advance directive. VSED should take its proper place among the accepted, permissible ways by which people can control the time and manner of death.

Type
Independent Articles
Information
Journal of Law, Medicine & Ethics , Volume 45 , Issue 4: Stigma & Health , Winter 2017 , pp. 634 - 646
Copyright
Copyright © American Society of Law, Medicine and Ethics 2017

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References

Not that it is entirely unrecognized or not accepted. The American Nurses Association, for example, includes both VSED and comfort feeding only as appropriate means by which dying may be hastened in situations of terminal illness, pursuant to proper patient and proxy consent. “Nutrition and Hydration at the End of Life,” revised position statement of the ANA (Silver Spring, MD: 2017), available at <http://www.nursingworld.org/MainMenuCategories/EthicsStandards/Resources/Ethics-Position-Statements/Nutrition-and-Hydration-at-End-of-Life.pdf> (last visited November 17, 2017). In The Netherlands, an initial study of primary care providers concludes that “VSED is not uncommon in Dutch primary care.” See Bolt, E. E., Hagens, M. H., Willems, D., and Onwuteaka-Philipsen, B. D., “Primary Care Patients Hastening Death by Voluntarily Stopping Eating and Drinking,” Annals of Family Medicine 13, no. 5 (2015): 421-428, at 427.CrossRefGoogle Scholar
Alternately known as physician-assisted suicide. By either term the act referred to is the same: a physician authorizes a lethal agent that the patient self-administers.Google Scholar
In this paper I do not address another question that will be important to some in considering VSED: withholding food and water by mouth in accordance with a patient’s advance directive to do so. Though legally and ethically problematic, this combination of VSED and advance directive has been explored and cautiously defended by some. For sources and further discussion, see note 49.Google Scholar
Physician assistance in a suicide is legal in Oregon, Washington, Vermont, Montana, California, and Colorado, as well as the District of Columbia. Outside the U.S. it is legal in Switzerland, Belgium, and The Netherlands. In those jurisdictions it is typically allowed only in restricted circumstances such as terminal illness (the U.S. states) or unbearable suffering (Belgium and the Netherlands). The exception is Switzerland, where neither terminal illness nor a minimum level of suffering are required, though the person assisting must be acting unselfishly. See Lewis, P., “Assisted Dying: What Does the Law in Different Countries Say?” BBC World report (2015), available at <http://www.bbc.com/news/world-34445715?SThisFB> (last visited November 17, 2017).+(last+visited+November+17,+2017).>Google Scholar
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This close connection of VSED with the right to refuse life-saving treatment may not similarly obtain between the right to refuse treatment and physician-assisted death (euthanasia and aid-in-dying). If it does not, fewer pressures of consistency push toward legalizing aid-in-dying or euthanasia when the society accepts VSED.Google Scholar
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Some may argue that the doctrinal Roman Catholic position should not reach this conclusion. The elements in Catholic moral theology that may provide grounds for regarding VSED as permissible include a fuller understanding of the “extraordinary” care that may be refused as involving “disproportionate” or “excessive burden,” a strong emphasis on “hope of benefit” and “friendship with God” as the ultimate goods that extended life can often bring but sometimes threatens, and wariness about a too exclusive focus on the slippery notion of intention. On these important nuances in Catholic moral tradition, see O’Rourke, K. D., “The Catholic Tradition on For-going Life Support,” The National Catholic Bioethics Quarterly 5, no. 3 (2005): 537-553. I only call attention to these elements; O’Rourke himself does not attempt to draw from them any conclusion about the permissibility of VSED.CrossRefGoogle Scholar
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A slightly different analysis of how VSED qualifies as suicide is given by Jox et al., supra note 27. Jox et al. focus on action rather than causation: suicide involves an explicit element of deliberate action, and actions are sometimes performed by omissions.Google Scholar
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Jox et al., supra note 27, argue that different circumstances should determine whether the palliative care used with the VSED that is suicide constitutes assistance with a suicide or only comfort enhancing care. If patients would choose VSED only when assured that they will receive palliative care as needed throughout the process, or if the patient has already begun VSED but would resume eating and drinking were palliative care not provided, then providing such care is assisting in a suicide. On the other hand, if VSED has been begun and the patient will continue its course even if palliative care is not provided, then providing it is not assisting the suicide. These distinctions may or may not be coherent and relevant. I do not pursue them because in my analysis, the more important question is whether the suicide and suicide assistance that VSED may involve make it wrong. That is not an option for Jox et al., who are concerned with whether palliative care organizations and legal scholars can defend the provision of medical support for VSED when they are already professionally committed to opposing suicide and its assistance.Google Scholar
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The Supreme Court of South Australia in H Ltd v J, supra note 19, made a slightly different move to avoid the conclusion that assisting with VSED is the criminal offence of assisting a suicide. The judge had previously concluded that VSED was not suicide, but stated that even if he was wrong and it was suicide, “merely respecting a competent refusal falls short of the required encouragement to constitute aiding and abetting.” See White, Willmott, and Savulescu, supra note 5, at 382-384. (The quotation is White, Willmott, and Savulescu’s description of the judge’s position, not the judge’s own words.) This point will not hold if providing the palliative care is significantly more by way of assistance than merely respecting the patient’s choice to use VSED.Google Scholar
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In speaking of the “authority” of ADs I do not claim for them anything like final control. The term only means that they have normative force and should be respected as having a substantial role.Google Scholar
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Sometimes the new situation that poses the dilemma about whether to follow the previous directive is more accurately described as a “change of mind” situation than a conflict between the patient’s directive and her current best interest. A legitimate change of mind about one’s directive changes the directive itself and may thus remove the conflict. What changes in mental attitude constitute a real change of mind about one’s directive is itself a complex matter. I have attempted to sort out this issue in Menzel, P., “Change of Mind: An Issue for Advance Directives,” in Davis, J. K. (ed.), Ethics at the End of Life: New Issues and Arguments (New York: Routledge, 2017), 126-137.Google Scholar
We must be careful here. Admitting into the moral equation James’ experiential interest in surviving does not dictate the conclusion that we should administer the lifesaving treatment. It only means that the AD does not have exclusive authority. Were James to slide further into dementia, for example, to a point where he could not anticipate tomorrow or appreciate having survived from yesterday, for example, a decision to follow his directive could be justified on the basis of what would appear to be a compelling judgment about his current overall best interest. The subjective value to him of survival will have diminished to a point that it can readily be outweighed by his strong critical interest in not being treated. If we did not at some point allow the critical interests conveyed in James’ AD to tip the balance as his experiential interest in survival declines, we would be treating him the same as a never-competent person. That would expose us to Rhoden’s compelling objection that previously competent persons never be treated simply as if they had never been competent. With co-authors I have referred to this way of handling the tension between then-self and now-self — weighing up together a person’s experiential and critical interests — as a “balancing” or “sliding scale” model. See Menzel and Steinbock, supra note 45, at 495-496, and Menzel and Chandler-Cramer, note 49, at 28-29.Google Scholar
Cantor (2017), supra note 38, at the last (unnumbered) page before Cantor presents his own advance directive (emphasis added). One can also observe more generally about ADs that clinicians’ actual incentives to follow them may be weak. Even if ADs are seen by clinical caregivers to have significant ethical and legal authority, their perceptions of legal vulnerability can easily lead them not to follow an AD. They may, not unreasonably, have greater fear of legal vulnerability if they follow a directive and the patient dies than they do if they fail to follow the directive. This situation in the world of practice may be changing, however, as more judicial decisions come forth that hold providers accountable for not following a valid, applicable directive. See Pope, T. M., “Legal Briefing: New Penalties for Disregarding Advance Directives and Do-Not-Resuscitate Orders,” Journal of Clinical Ethics 28, no. 1 (2017): 74-78.Google Scholar