Voluntarily Stopping Eating and Drinking: A Legal Treatment Option at the End of Life

66 Pages Posted: 27 Feb 2012  

Thaddeus Mason Pope

Mitchell Hamline School of Law; Queensland University of Technology - Australian Health Law Research Center; Saint Georges University; Alden March Bioethics Institute

Lindsey E. Anderson

Widener University Delaware Law School

Multiple version iconThere are 2 versions of this paper

Date Written: January 1, 2011

Abstract

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 by which 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 in order 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 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, the authors aim to fill this gap and to clarify the legal status of VSED. Specifically, the authors 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 United States 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: death, dying, voluntary dying, informed consent, suffering, VSED, abuse, neglect, assisted suicide, hydration, nutrition

JEL Classification: K32

Suggested Citation

Pope, Thaddeus Mason and Anderson, Lindsey E., Voluntarily Stopping Eating and Drinking: A Legal Treatment Option at the End of Life (January 1, 2011). Widener Law Review, Vol. 17, No. 2, pp. 363-428, 2011. Available at SSRN: https://ssrn.com/abstract=2003450

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Avenue
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HOME PAGE: http://www.thaddeuspope.com

Queensland University of Technology - Australian Health Law Research Center ( email )

2 George Street
Brisbane, Queensland 4000
Australia

Saint Georges University ( email )

West Indies
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HOME PAGE: http://www.thaddeuspope.com

Alden March Bioethics Institute ( email )

47 New Scotland Ave
MC 153
Albany, NY 12208
United States

HOME PAGE: http://www.thaddeuspope.com

Lindsey E. Anderson

Widener University Delaware Law School ( email )

4601 Concord Pike
P.O. Box 7286
Wilmington, DE 19803-0474
United States

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