OLDER PROPLE ARE ASKING IF THEY CAN DIRECT THE WITHHOLDING OF NATURAL FEEDING IN AN ADVANCE DIRECTIVE. CAN WE ANSWER THE QUESTION?
After 50 years of court decisions and state legislation, advance directives are recognized as a tool for individuals to express their wishes regarding health care in later life when they are unable to speak for themselves, including decisions that will hasten death. But serious problems remain:
- There is uncertainty about the level of capacity required to execute advance directives
- Health care providers frequently do not honor patient directions
- The courts have not held refusing physicians liable for their failure to honor patient choice, but this may be changing
Advance refusal of nutrition and hydration provided by NG tubes and PEGs has come to be widely accepted. But the legality of patient refusal of natural feeding expressed in an advance directive, particularly those with advanced dementia, remains undecided, even though in most states voluntarily stopping eating and drinking - “VSED” - by patients with capacity is not illegal. A new form of advance directive for dementia patients is being offered by some not-for-profit organization and attorneys.
Opponents of allowing patients to refuse natural feeding argue that natural feeding is not medical treatment and therefore cannot be refused. Further, they say that such wishes expressed at an earlier time by the “old self” must be re-considered in the context of the “new self” and treating physicians must consider and evaluate new facts and should be allowed to disregard the advance directive signed by the “old self.”
Mr. Strauss will discuss a new form of advance directive regarding natural feeding that some attorneys are offering to clients as part of his presentation as well as the other topics mentioned above.
Recorded at the Elder Law Institute in July 2022.