67 Pages Posted: 10 Oct 2010 Last revised: 6 Nov 2013
Date Written: October 7, 2010
Despite the growing sophistication of palliative medicine, many individuals continue to suffer at the end of life. It is well settled that patients, suffering or not, have the right to refuse life-sustaining medical treatment (such as dialysis or a ventilator) through contemporaneous instructions, through an advance directive, or through a substitute decision maker. But many ill patients, including a large and growing population with advanced dementia who are not dependent upon life-sustaining medical treatment, do not have this option. They have the same rights, but there is simply no life-sustaining medical treatment to refuse.
Nevertheless, these patients have another right, another option to avoid suffering at the end of life. Patients with decision-making capacity may choose (through contemporaneous instructions) to voluntarily stop oral eating and drinking to accelerate the dying process. Moreover, patients without capacity often have the same option. Voluntarily stopping eating and drinking (VSED) is a clinically validated “exit option” that enables a good quality death. Significant and growing evidence supports VSED as a means of accelerating the dying process. Nevertheless, VSED is widely resisted by healthcare practitioners either because they think that it is illegal or because they are uncertain of its legality.
There has been little legal analysis of a right to VSED. In this Article, we aim to fill this gap and to clarify the legal status of VSED. Specifically, we argue that both contemporaneous and (most) non-contemporaneous decisions for VSED are legally permissible. Individuals may refuse nutrition and hydration just as they may refuse other intrusions on their personal autonomy. This right is grounded in the common law of battery, statutes, state constitutions, and even the U.S. Constitution. Moreover, VSED does not, as many believe, constitute abuse, neglect, or assisted suicide. Even ex ante decisions for VSED (exercised through an advance directive or a surrogate decision maker) are legal in most United States jurisdictions.
Keywords: medical futility, end-of-life, elder law, death, litigation, voluntarily stopping eating and drinking, palliative medicine
JEL Classification: K32
Suggested Citation: Suggested Citation
Pope, Thaddeus Mason and Anderson, Lindsey E., Voluntarily Stopping Eating and Drinking: A Legal Treatment Option at the End of Life (October 7, 2010). Widener Law Review, Vol. 17, p. 363, 2011; Widener Law School Legal Studies Research Paper No. 10-35. Available at SSRN: https://ssrn.com/abstract=1689049