|Dr Jacqueline Harvey|
In spite of the Nancy Cruzan case, which granted authority to third-parties to remove food and water, ANH is pervasively considered such ordinary care that states have explicitly written into their law strict safeguards against unilateral removal. The Cruzan standard was that, in the absence of a written advance directive, the healthcare decision maker can remove life support, including food and water if they present “clear and convincing evidence” that this was the will of the patient. This was used to kill Nancy by dehydration over 12 days. In New York, Senator Hannon is attempting to flout this standard by striking the section of the law that demands an agent be aware of the patient’s desire to die by starvation and dehydration before condemning them to die that long, lingering death. Senate Bill 4794 would grant an agent decision-making authority to dehydrate a patient even when the patient’s wishes are not known and cannot be determined:
Section 3. Subdivision 2 of section 2982 of the public health law, as amended by chapter 230 of the laws of 2004, is amended to read as follows:
2. Decision making standard. After consultation with a licensed physician, registered nurse, licensed psychologist, licensed master social worker, the agent shall make health care decisions: (a) in accordance with the principal's wishes, including the principal's religious and moral beliefs; or (b) if the principal's wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with the principal's best interests;S4794 would amend the law to clarify that oral feeding is not applicable, a surprising addition. EPC has been involved with legal efforts to ensure patients with dementia are given food and water by mouth when family members object and perhaps see the person as better off dead. But it is important to note that an inability to swallow is an arbitrary standard. Several scenarios can inhibit a patient’s ability to swallow. Anyone requiring only a feeding tube is not brain dead, but often brain injured, like this man whose wife was encouraged to discontinue his feeding tube, but awakened from his coma and is recovering from his brain injury day-by-day. Even fully-conscious people may require tube feeding. In Britain, for example, a man named Leslie Burke with cerebral ataxia petitioned the court to prevent the removal of feeding tube after he lost the ability to request it, fearing an agonizing death that in another famous tragic case, Terri Schindler Schiavo, died after 13 days.
provided, however, that if the principal's wishes regarding the administration of artificial nutrition and hydration are not reasonably known and cannot with reasonable diligence be ascertained, the agent shall not have the authority to make decisions regarding these measures.
While conscious people and Mr. Burke could make their wishes known, those who do not explicitly declare their wish not to be denied food and water could be legally denied food and water. Instead of erring on the side of life, S4794 grants full life-and-death decision making capability into the hands of someone who may not know what the patient would want nor have any way to determine that information.
If S4794 passes, New York will usher in dehydration by default and all people will be at risk. Please contact Senator Kemp and declare your opposition to S4794 at: firstname.lastname@example.org