Pat Milmoe McCarrick writes for the National Reference
Center
The obvious response is that providing for food and fluids, by
whatever means, is just an extension of basic care. Such provision, in sickness
and in health, is a basic life-sustaining measure that, if not maintained, must
lead to death. In that case, it is not and cannot be considered to be a medical
'treatment'.
This article is informative and insightful. There is also provision of information on relevant books and articles.
This article is informative and insightful. There is also provision of information on relevant books and articles.
Extracts follow -
I. Federal and State Actions
Baby Doe Case
Parents of a Down’s syndrome infant who was
born in Indiana in 1982 decided not to permit
surgery to repair the baby’s blocked esophagus.
The infant, who was known as “Baby Doe,”
starved to death in the hospital. In response, the
Secretary of the US Department of Health and
Human Services proposed federal regulations
(under Section 504 of the Rehabilitation Act of
1973) to require that hospitals post notices stating
that health care could not be withheld from infants
on the basis of mental or physical impairments.
This regulation took effect early in 1984, and the
approved display notices said that “nourishment
and medically beneficial treatment” should not be
denied (45 CFR §84. 55(b) [3] and [4]).
Subsection (c) of this regulation said that state
child protective agencies should be prepared to
obtain “timely court order[s] to compel the provi-
sion of necessary nourishment and medical treat-
ment” (45CFR §84. 55(c)(1)[iv]). These federal
regulations concerning handicapped infants ap-
plied even if parental consent to treatment had
been refused.
In cases testing the regulations, the American
Medical Association, the American Hospital As-
sociation and other medical groups questioned
their validity (United States v. University Hospital,
729 F. 2d. 144 [1984]; American Hospital Assoc-
iation v. Heckler, 585 F. Supp. 541, App. to Pet.
for Cert. 50a [1984]). The lower courts found the
regulations were an invalid application of the 1973
act and this ruling was upheld by the U.S. Supreme
Court on June 9, 1986 (Bowen v. American Hos-
pital Association, et al., [No. 84-1529] 54 LW
4579, US Supreme Court, June 9, 1986).
Currently, under the final rule in the Child Abuse
and Neglect Prevention and Treatment Program
(implementing the Child Abuse Amendments of
1984 [Pub. L. 98-457]), treatment of infants with
life-threatening conditions must include providing
appropriate nutrition, hydration, and medication
even when the infant is irreversibly comatose,
imminently dying, or when such measures are
futile in terms of survival (45 CFR
1340.15(b)(2)(i),(ii),and (iii), April 15, 1985).
This case is mentioned previously in these pages at Liverpool Care Pathway -And "Hastening Death"
II. Professional Groups
American Nurses Association.
Practice: Withdrawing or Withholding Food
and Fluids. Excerpts from the Guidelines of the
American Nurses Association Committee on
Ethics. American Journal of Nursing 88(6): 797-
798, June 1988.
Stating that nurses should not usually be in-
volved with the withholding or withdrawing of
food or fluids, the guidelines then say there are
a few cases when such a step is morally permis-
sible: if the patient clearly would be harmed
(damaged), or when patients competently refuse
such treatment. However, in most cases it says
the provision of food and fluid is in the patient’s
best interest.
"In most cases, the provision of food and fluids is in the patient's best interest"
Committee on Biomedical Ethics of the Los
Angeles County Medical Association and the Los
Angeles County Bar Association. Principles and
Guidelines Concerning the Foregoing of
Life-Sustaining Treatment for Adult Patients.
Adopted January 6, 1986.
The guidelines present general principles for
decision making by adult patients or their surro-
gates, and define a terminal illness as an irre-
versible medical condition which will cause
death in one year. The medical records of a
comatose patient should have statements by at
least two qualified physicians indicating that any
meaningful recovery of the patient’s cognitive
functions is unlikely: “In such circumstances, all
life-sustaining interventions, including nutrition
and hydration, are legally equivalent. It is legally
acceptable for the caregivers to withhold or
withdraw any or all of them. It is recognized
however, that nutrition and hydration have a
powerful and symbolic significance to both the
members of the general public and to many
caregivers. Decisions concerning the care of an
individual patient should be made jointly by
members of the health care team and the pa-
tient’s family and/or other appropriate persons.”
"Decisions concerning the care of an individual patient should be made jointly by members of the health care team and the patient's family and/or other appropriate persons"
This is a matter of moot point in regard to the Mental Capacity Act and the Liverpool Care Pathway. Whilst the family are required to be informed (although, more often, are not), the Mental Capacity Act gives the Medic the power to give the thumbs up or the thumbs down and, like Caesar, wield it they do.
Pontifical Academy of Sciences. Prolonging Life
and Determining Death. Report. Health Prog
ress 66(10): 31-72, December 1985.
Baby Doe Case
Parents of a Down’s syndrome infant who was
born in Indiana in 1982 decided not to permit
surgery to repair the baby’s blocked esophagus.
The infant, who was known as “Baby Doe,”
starved to death in the hospital. In response, the
Secretary of the US Department of Health and
Human Services proposed federal regulations
(under Section 504 of the Rehabilitation Act of
1973) to require that hospitals post notices stating
that health care could not be withheld from infants
on the basis of mental or physical impairments.
This regulation took effect early in 1984, and the
approved display notices said that “nourishment
and medically beneficial treatment” should not be
denied (45 CFR §84. 55(b) [3] and [4]).
Subsection (c) of this regulation said that state
child protective agencies should be prepared to
obtain “timely court order[s] to compel the provi-
sion of necessary nourishment and medical treat-
ment” (45CFR §84. 55(c)(1)[iv]). These federal
regulations concerning handicapped infants ap-
plied even if parental consent to treatment had
been refused.
In cases testing the regulations, the American
Medical Association, the American Hospital As-
sociation and other medical groups questioned
their validity (United States v. University Hospital,
729 F. 2d. 144 [1984]; American Hospital Assoc-
iation v. Heckler, 585 F. Supp. 541, App. to Pet.
for Cert. 50a [1984]). The lower courts found the
regulations were an invalid application of the 1973
act and this ruling was upheld by the U.S. Supreme
Court on June 9, 1986 (Bowen v. American Hos-
pital Association, et al., [No. 84-1529] 54 LW
4579, US Supreme Court, June 9, 1986).
Currently, under the final rule in the Child Abuse
and Neglect Prevention and Treatment Program
(implementing the Child Abuse Amendments of
1984 [Pub. L. 98-457]), treatment of infants with
life-threatening conditions must include providing
appropriate nutrition, hydration, and medication
even when the infant is irreversibly comatose,
imminently dying, or when such measures are
futile in terms of survival (45 CFR
1340.15(b)(2)(i),(ii),and (iii), April 15, 1985).
This case is mentioned previously in these pages at Liverpool Care Pathway -And "Hastening Death"
II. Professional Groups
American Nurses Association.
Practice: Withdrawing or Withholding Food
and Fluids. Excerpts from the Guidelines of the
American Nurses Association Committee on
Ethics. American Journal of Nursing 88(6): 797-
798, June 1988.
Stating that nurses should not usually be in-
volved with the withholding or withdrawing of
food or fluids, the guidelines then say there are
a few cases when such a step is morally permis-
sible: if the patient clearly would be harmed
(damaged), or when patients competently refuse
such treatment. However, in most cases it says
the provision of food and fluid is in the patient’s
best interest.
"In most cases, the provision of food and fluids is in the patient's best interest"
Committee on Biomedical Ethics of the Los
Angeles County Medical Association and the Los
Angeles County Bar Association. Principles and
Guidelines Concerning the Foregoing of
Life-Sustaining Treatment for Adult Patients.
Adopted January 6, 1986.
The guidelines present general principles for
decision making by adult patients or their surro-
gates, and define a terminal illness as an irre-
versible medical condition which will cause
death in one year. The medical records of a
comatose patient should have statements by at
least two qualified physicians indicating that any
meaningful recovery of the patient’s cognitive
functions is unlikely: “In such circumstances, all
life-sustaining interventions, including nutrition
and hydration, are legally equivalent. It is legally
acceptable for the caregivers to withhold or
withdraw any or all of them. It is recognized
however, that nutrition and hydration have a
powerful and symbolic significance to both the
members of the general public and to many
caregivers. Decisions concerning the care of an
individual patient should be made jointly by
members of the health care team and the pa-
tient’s family and/or other appropriate persons.”
"Decisions concerning the care of an individual patient should be made jointly by members of the health care team and the patient's family and/or other appropriate persons"
This is a matter of moot point in regard to the Mental Capacity Act and the Liverpool Care Pathway. Whilst the family are required to be informed (although, more often, are not), the Mental Capacity Act gives the Medic the power to give the thumbs up or the thumbs down and, like Caesar, wield it they do.
Pontifical Academy of Sciences. Prolonging Life
and Determining Death. Report. Health Prog
ress 66(10): 31-72, December 1985.
A short statement was released following a three
day meeting of the Pontifical Academy of Sci-
ences in Rome in October 1985. Feeding is
included as appropriate care for a person in an
irreversible permanent coma. Medical interven-
tions are not required if there is no benefit to the
patient.
III. Court Cases
Barber/Nejdl v. Superior Court of Los Angeles
County, 147 Cal. App. 3d 1006,195 Cal. Rptr. 484
(1983).
Clarence Herbert, a 55 year old man, became
comatose following surgery, and his physicians,
Doctors Barber and Nejdl, agreed that he would
not recover from this coma. After meeting with
Mr. Herbert’s family, the doctors removed the
patient’s life-support systems, including his
intravenous feeding tubes. A nurse complained
about the decision, saying that it had been made
hastily. The district attorney prosecuted the two
physicians for murder; he said that their termina-
tion of treatment was to conceal malpractice in
surgery and they had stopped treatment too
quickly. The California Court of Appeals dis-
missed the charges and ruled that they were not
required to treat if there were no hope of recov-
ery; the court also said that a spouse could make
such a decision if the patient were incompetent.
It ruled that provision of artificial nourishment
and hydration was no different from using other
medical equipment (V, Mishkin 1986).
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