¹ In re Quinlan, 355 A.2d 647 (N.J. 1976).

² For a discussion of the nature of this consensus, see Meisel, Alan, The Legal Consensus About Forgoing Life-Sustaining Treatment: Its Status and Its Prospects, 2 KENNEDY INST. ETHICS J. 309 (1992)CrossRefGoogle Scholar [hereinafter Meisel, The Legal Consensus].

³ See, e.g., Solomon, Mildred Z. et al., Decisions Near the End of Life: Professional Views on Life-Sustaining Treatments, 83 AM. J. PUB. HEALTH 14, 14 (1993)CrossRefGoogle Scholar (“changes in the care of dying patients may not have kept pace with national recommendations, in part because many physicians and nurses disagreed with and may have been unaware of some key guidelines, such as the permissibility of withdrawing treatments“).

⁴ I use the term forgo (and variants on it) to include both the withholding and withdrawal of treatment. See PRESIDENT's COMM'N FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, DECIDING TO FOREGO LIFE-SUSTAINING TREATMENT 2 n.l (1983).

⁵ I use the term feeding tube to refer to a variety of different devices for providing nutrition and hydration to individuals who are unable to take adequate oral nourishment, including those inserted through the nose (nasogastric tubes), and those implanted surgically in various parts of the stomach or intestines. These different procedures are described in In re Hier, 464 N.E.2d 959, 961-62 (Mass. App. Ct. 1984). I am not using the term feeding tube to apply to intravenous feeding, which cannot sustain life for extended periods of time. See id.; In re Visbeck, 510 A.2d 125, 127 (N.J. Super. Ct. Ch. Div. 1986). I also do not use it to refer to feeding patients with a spoon or bottle. See In re Conroy, 486 A.2d 1209, 1236 (N.J. 1985) (“artificial feedings such as nasogastric tubes, gastrostomies, and intravenous infusions are significantly different from bottle-feeding or spoonfeeding— they are medical procedures with inherent risks and possible side effects, instituted by skilled healthcare providers to compensate for impaired physical functioning.“).

⁶ DeGrella v. Elston, 858 S.W.2d 698, 707 n.5 (Ky. 1993) (quoting NATIONAL CTR. FOR STATE COURTS, GUIDELINES FOR STATE COURT DECISION MAKING IN LIFE-SUSTAINING MEDICAL TREATMENT CASES 143-45 (2d ed. 1992)); see also infra part IV. However, as Justice O'Connor recognized in her concurring opinion in Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990), whether or not artificial nutrition and hydration techniques are medical treatment should not determine whether or not they must be accepted or may be forgone for, either way, “they all involve some degree of intrusion and restraint.” Id. at 288.

⁷ I use the terms competent and incompetent as shorthand for “person who possesses decision-making capacity” and “person who lacks decisionmaking capacity” respectively. In other words, when I use the terms competent or incompetent, I do not mean to suggest that the patient has not or has been adjudicated incompetent. The case law is clear that decisionmaking for persons who lack decisionmaking capacity ordinarily does not require an adjudication of incompetency and the judicial appointment of a guardian. See generally 1 ALAN MEISEL, THE RIGHT TO DIE §§ 5.9-.14 (2d ed. 1995).

⁸ There have been few reported appellate decisions involving competent patients wishing to terminate tube-feeding. Perhaps the best known is Bouvia v. Superior Court, 225 Cal. Rptr. 297 (Ct. App. 1986), holding that a nonterminally ill patient had a right not to be force-fed. In Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990), the Supreme Court did not squarely address the constitutionality of the termination of artificial nutrition and hydration, but it assumed “[f]or purposes of this case, … that a competent person would have a constitutionally protected right to refuse lifesaving hydration and nutrition.” Id. at 279 (dictum).

⁹ See generally 2 MEISEL, supra note 7, §§ 17.1-.17; Addlestone, Steven I., Liability for Improper Maintenance of Life Support: Balancing Patient and Physician Autonomy, 46 VAND. L. REV. 1255 (1993)Google Scholar; Gasner, M. Rose, Financial Penalties for Failing to Honor Patient Wishes to Refuse Treatment, 11 ST. LOUIS U. PUB. L. REV. 499 (1992)Google Scholar; Miller, David H., Right-to-Die Damage Actions: Developments in the Law, 65 DENV. U. L. REV. 181 (1988)Google Scholar; Oddi, A. Samuel, The Tort of Interference with the Right to Die: The Wrongful Living Cause of Action, 75 GEO. L.J. 625 (1986)Google Scholar.

¹⁰ See generally 1 MEISEL, supra note 7, §§ 7.2-.25.

¹¹ See generally 1 id. § 9.39.

¹² According to the American Hospital Association, there are approximately 2.2 million deaths per year in the United States. American Hosp. Ass'n, Brief of the American Hospital Association as Amicus Curiae in Support of Petitioners at 3, Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990) (No. 88-1503) (citing United States Nat'l Ctr. for Health Stats., 37 MONTHLY VITAL STAT. REP. 6 (1989)). Approximately 1.3 million of these deaths occur in hospitals. Id. (citing UNITED STATES NAT'L CTR. FOR HEALTH STATS., VITAL STATISTICS OF THE UNITED STATES (1986)). Fur thermore “[s]eventy percent die after a decision to forego life-sustaining treatment has been made.“ Id. (citing Helene L. Lipton, Do-Nat-Resuscitate Decisions in a Community Hospital: Incidence, Implications and Outcomes, 256 JAMA 1164 (1986).

¹³ See, e.g., Solomon et al., supra note 3, at 14.

¹⁴ In re Conroy, 486 A.2d 1209, 1236 (N.J. 1985) (holding that artificial nutrition and hydration is a medical treatment that may be withheld or withdrawn on the same basis as any other lifesustaining medical treatment); accord In re Peter, 529 A.2d 419, 427 (N.J. 1987) (artificial nutrition and hydration may be withheld from patient in persistent vegetative state (PVS) by authorization of her agent appointed by durable power of attorney).

A survey of physicians’ attitudes toward tube feeding nursing home residents asserts that “the vast majority of primary care physicians” believe that it is “medically appropriate to limit artificial hydration and nutrition under selected circumstances,” and only “a small minority of physicians indicated they would tube feed in all cases, regardless of patients’ or families’ preferences, or patients' cognition, life expectancy, physical function or age.” Preyss-Friedman, Sabine M. Von et al., Physicians’ Attitudes Toward Tube Feeding Chronically III Nursing Home Patients, 7 J. GEN. INTERNAL MED. 46, 49 (1992)Google Scholar. A serious limitation of this study is that it reveals what physicians say they would do but it does not take into account the pressures that might exist from nursing home owners and administrators to prohibit the withholding or withdrawal of tube-feeding. Further, it is not clear that the surveyed physicians actually work in nursing homes. See id. at 50-51.

¹⁵ See, e.g., Rosebush v. Oakland County Prosecutor, 491 N.W.2d 633, 641 (Mich. Ct. App. 1992) (“discontinuance of life-support measures merely allows the patient's injury or illness to take its natural and inevitable course“).

¹⁶ See, e.g., Conroy, 486 A.2d at 1226 (“[D]eath would result… from her underlying medical condition which included her inability to swallow.“); Peter, 529 A.2d at 428 (“withdrawal of nasogastric tube … merely acquiesces in the natural cessation of a critical bodily function“); Ragona. v. Preate, 6 Pa. D. & C.4th 202, 216 (C.P. Lackawanna County 1990) (removal of patient's feeding tube “permits her to die from the natural progression of her illness“).

¹⁷ See, e.g., In re Gardner, 534 A.2d 947, 958 (Me. 1987) (Clifford, J., dissenting). Gardner is not terminally ill and if the feeding tube is withdrawn, he will starve to death. Drawing a chain of proximate causation from the accident to his death does not lessen the impact of this stark result. The outcome in such a case should not turn on whether the patient has the capacity to swallow, to lift his head, or to sip from a cup.

Id.; In re Doe, 583 N.E.2d 1263, 1277 (Mass.), cert, denied sub nom. Doe v. Gross, 112 S. Ct. 1512 (1992) (O'Connor, J., dissenting) (“[B]ut for removal or non-use of the nasoduodenal tube, Jane Doe will live for the indefinite, perhaps considerable, future. Without it she will promptly die. That is proximate causation according to any recognized definition of that term.“); In re Guardianship of L.W., 482 N.W.2d 60, 66 (Wis. 1992) (“Unlike most medical technological advances of a mechanistic nature, it is difficult to view nourishment as anything but normal and essential human care. It is difficult not to view the withdrawal of artificial feeding as inducing death through starvation and dehydration.“).

¹⁸ In re Grant, 747 P.2d 445 (Wash. 1987), modified, 757 P.2d 534 (Wash. 1988) (Anderson, J., dissenting) (“[T]he majority's … decision … allows the patient's life to be taken by withholding intravenous nutrition and hydration or, to use less polite phraseology, to let her die of thirst or starvation. Call it whatever the majority will, this is pure, unadorned euthanasia.“).

¹⁹ See, e.g., Gray v. Romeo, 697 F. Supp. 580, 589 (D.R.I. 1988) (death will result from underlying disease or affliction that prevents her from chewing or swallowing); McConnell v. Beverly Enters.-Conn., Inc., 553 A.2d 596, 608 (Conn. 1989) (Healey, J.) (Death “will not be the result of suicide, i.e., self-inflicted, but will be the final result of her inability to receive nutrition and hydration by other than extraordinary means.“); In re Estate of Greenspan, 558 N.E.2d 1194 (111. 1990); Grant, 747 P.2d at 445.

She is suffering from a disease which may eventually cause her to lose the ability to swallow if she has not died before the onset of that complication. In other words, a vital bodily function may have to be performed by artificial means … . Yet in none of these cases can the withholding of life sustaining devices be deemed the cause of Barbara's death. The cause of her death will be Batten's disease.

Id.; Gardner, 534 A.2d at 956 (“[C]ause of death will be not his refusal of care but rather his accident and his resulting medical condition, including his inability to ingest food and water.“).

²⁰ I use the terms nursing home and long-term care facility interchangeably. Although common parlance, even among health care professionals, lawyers, and judges, tends to favor the former, long-term care facility is the term used in federal and many state statutes and regulations. “Longterm care facilities include both skilled nursing facilities … and intermediate care facilities … .“ Medicare and Medicaid: Conditions of Participation of Long Term Care Facilities, 52 Fed. Reg. 38,582, 38,582 (1987); e.g., 42 C.F.R. §§ 442.2, 447.251, 483.5 (1994). The distinction between these two kinds of facilities was abolished for federal regulatory purposes in the foregoing regulations, in part because states were “not consistent in making distinctions between the two types of nursing homes.” INSTITUTE OF MEDICINE, IMPROVING THE QUALITY OF CARE IN NURSING HOMES 9 (1986). Long-term care facilities, at least insofar as this article and federal regulations are concerned, do not include personal care homes which provide a supportive residential setting for individuals who require assistance beyond the basic necessities of food and shelter but who are not in need of hospitalization or nursing care, nor do they include boarding homes which generally provide meals in addition to a residence.

²¹ There do not appear to be any studies establishing the range or frequency of the reasons for not permitting the withholding or withdrawal of tube-feeding in nursing homes in comparison with hospitals.

²² See Rasmussen v. Fleming, 741 P.2d 674, 688 (Ariz. 1987) (guardian of nursing home resident in persistent vegetative state may authorize removal of nasogastric tube if it is in ward's best interests); In re Drabick, 245 Cal. Rptr. 840, 841 (Ct. App. 1988) (conservator of incompetent patient can decide to remove artificial life support from patient with no chance of survival if it is in the patient's best interest); McMahon v. Lopez, 245 Cal. Rptr. 172, 176 (Ct. App. 1988); McConnell, 553 A.2d at 605 (family of nursing home patient in PVS has authority to consent to removal of gas trostomy tube); In re Guardianship of Browning, 568 So. 2d 4, 13 (Fla. 1990); In re Estate of Greenspan, 558 N.E.2d 1194, 1203 (111. 1990) (public guardian authorized to terminate tube-feeding of nursing home resident in PVS); In re Lawrance, 579 N.E.2d 32, 41 (Ind. 1991) (stating explicitly that the surrogate did not need court proceedings to make health care decisions for the incompetent party); DeGrella v. Elston, 858 S.W.2d 698, 709 (Ky. 1993) (affirming “patient's right to choose to refuse treatment through her surrogate“); In re Peter, 529 A.2d 419, 429 (N.J. 1987) (recognizing the authority of agent appointed by persistently vegetative nursing home resident to terminate tubefeeding where there is clear and convincing proof that if patient were competent, he or she would decline treatment); In re Jobes, 529 A.2d 434, 461 (N.J.), reconsideration and slay denied. 531 A.2d 1360 (N.J.), cert, denied sub nom. Lincoln Park Nursing & Convalescent Home v. Kahn. 483 U.S. 1036 (1987) (husband of nursing home resident in persistent vegetative state authorized to terminate tube-feeding based on substituted judgment standard); In re Conroy, 486 A.2d 1209, 1241 (N.J. 1985) (feeding tube is medical treatment that may be withheld or withdrawn from elderly nursing home resident not in a persistent vegetative state if she had authorized this before losing decisionmaking capacity, or on basis of one of two best interests standards if she had not); Wickel v. Spellman, 552 N.Y.S.2d 437, 438 (App. Div. 1990) (petitioner failed to meet burden of showing that nursing home patient intended to refuse artificial nutrition and hydration under particular circumstances presented); Elbaum v. Grace Plaza, Inc., 544 N.Y.S.2d 840, 846 (App. Div. 1989) (where there is clear and convincing evidence that now-incompetent patient wanted tube-feeding stopped, nursing home's interest in maintaining its ethical integrity does not prevail over patient's interests); cf. Gray, 697 F. Supp. at 583.

There are also some reported trial court cases involving specifically nursing home residents for whom tube-feeding is sought to be forgone. See Vogel v. Forman, 512 N.Y.S.2d 622 (Sup. Ct. 1986); see also In re Visbeck, 510 A.2d 125 (N.J. Super. Ct. Ch. Div. 1986); Workmen's Circle Home & Infirmary for the Aged v. Fink, 514 N.Y.S.2d 893 (Sup. Ct. 1987); In re Guardianship of Crum, 580 N.E.2d 876 (Ohio P. Ct. Franklin County 1991); In re Fiori, 17 Pa. D. & C.4th 558 (C.P. Bucks County 1993), affd, 652 A.2d 1350 (Pa. Super. Ct. 1995), review granted, 655 A.2d 989 (Pa. 1995).

Another case involving the tube-feeding of a nursing home patient is In re Hier, 464 N.E.2d 959 (Mass. App. Ct. 1984). However, in this case, those caring for the patient actually believed that it was ill-advised to reinsert a gastrostomy tube that had been removed by the patient, but sought a judicial resolution because of the need for someone to consent to surgery for the reimplantation of the tube. Id. at 961.

²³ See 1 MEISEL, supra note 7, §§ 4.12-.21.

²⁴ See l id. §§ 5.12-.23.

²⁵ Such factors might include the relative numbers of patients in hosptials and nursing homes, the relative numbers of such patients who are terminally ill or permanently unconscious, and the relative numbers of such patients who are unable to take adequate nutrition and hydration without a feeding tube.

²⁶ There is also evidence that it is more difficult to write a do-not-resuscitate order for the withholding of cardiopulmonary resuscitation in a nursing home than in a hospital. See, e.g., Besdine, Richard W., Decisions to Withhold Treatment from Nursing Home Residents, 31 J. AM. GERIATRICS Soc'Y 602 (1983)Google Scholar. However, it is not clear whether it is more difficult to forgo cardiopulmonary resuscitation than tube-feeding or vice-versa.

²⁷ The reported cases involving forgoing of nutrition and hydration have arisen in nursing homes, rehabilitation centers, or hospitals. The only reported cases of which I am aware involving the forgoing of life-sustaining treatment in another context are In re Farrell, 529 A.2d 404 (N.J. 1987), which involved the withdrawal of a ventilator in a home health care setting, and the cases in which prisoners have sought not to be force-fed, which generally have involved protests against prison conditions rather than efforts to forgo life-sustaining treatment. See generally, 1 MEISEL, supra note 7, § 8.19.

²⁸ See infra part IV.

²⁹ Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, §§ 4206, 4751, 104 Stat. 1388-115, -204 (codified as amended at 42 U.S.C.A. §§ 1395cc(f)(l), 1396a(a) (West 1992 & Supp. 1995)); see infra part IV.B.3.

³⁰ See Gray v. Romeo, 697 F. Supp. 580 (D.R.I. 1988). [The] hospital … is opposed to denying Mrs. Gray nutrition and hydration because it is tantamount to euthanasia, inconsistent with the physician's role as safekeeper of his or her patient's well being, … and the reputation which the hospital has as an institution for long-term care and the treatment of chronic care patients. Those professional health care personnel who administer to Mrs. Gray's needs presently are unanimous in their adamant opposition to the proposal to remove nutrition and hydration.

Id. at 583; McMahon v. Lopez, 245 Cal. Rptr. 172, 175 (Ct. App. 1988) (“The hospital's management group and attorney were concerned about ‘“doing the right thing by their patient'“; they were also concerned about what position would be taken by officials from the county Department of Health Services and health officials from the state.“); In re Jobes, 529 A.2d 434, 437 (N.J.), reconsideration and stay denied, 531 A.2d 1360 (N.J.), cert, denied sub nom. Lincoln Park Nursing & Convalescent Home v. Kahn, 483 U.S. 1036 (1987) (“The nursing home refused on moral grounds.“); Elbaum v. Grace Plaza, Inc., 544 N.Y.S.2d 840, 845 (App. Div. 1989) (nursing home “and its staff would be required to perform a morally objectionable act” if it were to terminate tubefeeding of a resident in a persistent vegetative state). Objections to termination of tube-feeding based on conscience are also cited in cases in which the patient is in a hospital. See, e.g., Brophy v. New Eng. Sinai Hosp., Inc., 497 N.E.2d 626, 639 (Mass. 1986) (hospital refused on ethical grounds to permit removal of feeding tube from patient in persistent vegetative state or to permit his transfer to another hospital for removal of feeding tube); In re Requena, 517 A.2d 886, 888-89 (N.J. Super. Ct. Ch. Div.), affd, In re Requena, 517 A.2d 869, 870 (N.J. Super. Ct. App. Div. 1986) (hospital refused to honor competent dying patient's request for removal of feeding tube).

³¹ Letter from Ellen Olson, M.D., Director of Medical Education and Co-Director of the Kathy and Alan C. Greenberg Center on Ethics in Geriatrics and Long Term Care, The Jewish Home & Hospital for Aged, to Alan Meisel (July 14, 1993); see also Kayser-Jones, Jeanie, The Use of Nasogastric Feeding Tubes in Nursing Homes: Patient, Family and Health Care Provider Perspectives, 30 GERONTOLOGIST 469, 474 (1990)Google Scholar (“Philosophically, nurses believe that patients should not be deprived of food and water… . Typical responses [to a question about whether patients should be tube fed if they refuse or are unable to eat] were: … ‘Food and water is a basic right.’ ‘It would be horribly uncomfortable to be starved to death.’ ‘It would be hard to watch people die from dehydration or malnutrition.'“).

I have previously suggested that there is greater reluctance to permit the forgoing of artificial nutrition and hydration than other life-sustaining medical treatments. This can be explained in part by the perception that it is easier for health care professionals to view their removal of a feeding tube as the direct cause of the patient's death. In contrast, when a ventilator, for example, is removed, it is easier to believe that the patient's death was caused by his inability to breathe. Consequently, to some at least, the removal of a feeding tube seems more like active euthanasia or mercy killing than the withholding or withdrawal of other forms of treatment. See 1 MEISEL, supra note 7, § 9.39, at 594.

³² For example:

Some of the nurses and nurses’ aides who work at the nursing home testified that they had observed examples of what they interpreted as cognitive awareness on the part of Mrs. Jobes. They claimed that she moved her head to aid them in washing her hair; smiled at appropriate times; followed people with her eyes; and relaxed when spoken to or touched in a soothing manner.

In addition, several nurses and aides testified that they saw tears in Mrs. Jobes' eyes when her family visited. Nurses pointed out the phenomenon they described as “tears” to Dr. Carlin when he examined her at the nursing home. He characterized it as an unemotional collection of secretions in the corner of Mrs. Jobes’ eyes. Dr. Liss also observed these secretions. He explained that they are merely accumulations of liquid that keep the conjunctiva moist and that they are created by rapid, reflexive eye-blinking, rather than emotions.

Other nurses and nurses’ aides testified that they had not observed any cognitive awareness in Mrs. Jobes, and that she gave no response to their verbal commands.

In re Jobes, 529 A.2d at 440.

³³ See Kayser-Jones, supra note 31, at 474 (“The director of nursing … in one [skilled nursing] facility had established a policy that everyone who was unable to eat must be tube fed. Tube feedings had become the standard of care and were therefore equated with eating.“); id. at 477 (“The nurse aides work closely with the patients, become attached to them, and feel sad when they die. Nurse aides are taught that they must not let patients die of malnutrition or dehydration.“).

³⁴ See id. at 474, 477.

³⁵ See, e.g., In re Drabick, 245 Cal. Rptr. 840, 847 (Ct. App. 1988); In re Estate of Greenspan, 558N.E.2d 1194, 1204(111. 1990).

³⁶ DeGrella v. Elston, 858 S.W.2d 698, 701 (Ky. 1993) (“The case is before our Court because Sue's attending physician and the nursing home fear legal sanctions, administrative, civil or even criminal, should they carry out the wishes of the patient as expressed through her mother and legal guardian.“); Robinson v. Beverly Enters.-Tenn., Inc., 1992 WL 200968 (Tenn. Ct. App. Aug. 21, 1992) (not reported in S.W.2d) (nursing home administrator told patient's family “that under Tennessee law the nursing home was not permitted to allow a patient to die of starvation and dehydration and if they did not agree to tube feeding of [patient] they must remove him from” the nursing home); cf. Gray v. Romeo, 697 F. Supp. 580, 583 (D.R.I. 1988) (hospital opposed removal of feeding tube from patient in PVS because of “the fear that the hospital has of civil or criminal responsibility“).

This reason is frequently given with respect to termination of tube-feeding and other treatments in hospitals as well as in nursing homes. See 2 MEISEL, supra note 7, § 18.1, at 450 n.l (collecting cases in which this fear was said to be the impetus for litigation); see also Von Preyss- Friedman et al., supra note 14, at 50 (“legal and liability issues” might affect a “subgroup of physicians who are especially concerned regarding medicolegal considerations.“). See generally 2 MEISEL, supra note 7, § 17.1, at 350-53, § 18.1, at 450.

³⁷ Gray, 697 F. Supp. at 583. For additional reasons, see, e.g., In re Peter, 529 A.2d 419, 422 (N.J. 1987) (objection of ombudsman); In re Conroy, 486 A.2d 1209, 1217 (N.J. 1985) (nursing home did not object, but deferred to doctor who objected on the ground that it was unacceptable medical practice). In most of the reported cases, no reason is expressly stated as to why there was an objection to the termination of tube-feeding. See, e.g., Rasmussen v. Fleming, 741 P.2d 674 (Ariz. 1987); In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990); Wickel v. Spellman, 552 N.Y.S.2d 437 (App. Div. 1990); Vogel v. Forman, 512 N.Y.S.2d 622 (Sup. Ct. 1986); In re Guardianship of Crum, 580 N.E.2d 876 (Ohio P. Ct. Franklin County 1991).

³⁸ GEORGE D. POZGAR, LONG-TERM CARE AND THE LAW 120 (1992) (75% proprietary, 20% voluntary nonprofit, 5% government).

³⁹ KANE, ROSALIE A. & KANE, ROBERT L., LONG TERM CARE: PRINCIPLES, PROGRAMS, AND POLICIES 267 (1987)Google Scholar.

⁴⁰ Some states’ systems of reimbursement of long-term care facilities for Medicaid patients are based on the amount of resources that various categories of patients require. Patients receiving tubefeeding are placed in a category that obtains a higher level of reimbursement than patients without feeding tubes. Telephone Interview with Toby Edelman, National Senior Citizens Law Center (Oct. 21, 1993). See generally Schlenker, Robert E., Case Mix Reimbursement for Nursing Homes, 11 J. HEALTH POL. POL'Y & L. 445, 454 (1986)Google Scholar.

⁴¹ Cf. Schlenker, supra note 40, at 456 (“Since case mix [reimbursement] systems pay more for heavy-care patients, it is important to determine that unnecessary care is not provided, that necessary care is provided, and that incentives for rehabilitation exist.“).

⁴² Von Preyss-Friedman et al., supra note 14, at 50 (cost considerations appear to lead to less aggressive tube-feeding).

⁴³ Kayser-Jones, supra note 31, at 474 (“NG [nasogastric] tubes are sometimes used for the convenience of the staff.“).

⁴⁴ Id. at 473 (“The mother of a man who had suffered brain damage … said: … ‘They give him one bite, and if he doesn't want more, they take the food away. I saw them do that. If I weren't here to feed him, they would put the tube right back down.'“).

⁴⁵ Johnson, Sandra H., Quality-Control Regulation of Home Health Care, 26 Hous. L. REV. 901, 925-26 (1989)Google Scholar; Marmor, Theodore R. et al., A New Look at Nonprofits: Health Care Policy in a Competitive Age, 3 YALE J. ON REG. 313, 333 (1986)Google Scholar.

⁴⁶ See Von Preyss-Friedman et al., supra note 14, at 51 (concluding that most physicians appear to believe it is acceptable to withhold or withdraw tube feeding under certain circumstances); see also Kayser-Jones, supra note 31, at 475-76 (presenting evidence that few physicians encounter the same moral and psychological conflicts about forgoing artificial nutrition and hydration as do other health care professionals).

⁴⁷ Cf. Kayser-Jones, supra note 31, at 474-75 (64% of registered nurses working in nursing homes interviewed supported NG tube feeding when necessary, while only 19% of nursing home physicians unequivocally approved the use of NG tube feeding). “[O]ur findings are similar to those of Watts et al. (1986), who found that nurses showed a higher preference for tube feeding than did physicians … . “ Id. at 477.

⁴⁸ See id. at 475 (“20% of the physicians interviewed said that external pressure from ombudsmen, families, and nursing staff influenced their decisions regarding the use of NG tubes… . The fear of litigation and the use of NG tubes to protect the facility from citations were also identified as sources of pressure.“). In addition, physicians may be pressured into ordering tube-feeding for fear that the resident will be discharged if tube-feeding is not instituted.

External pressure sometimes results in manipulative behavior on the part of physicians who are opposed to the use of NG tubes. A physician described a situation in which he received a call from the nursing home saying they could not keep his patient unless he ordered tube feedings. He agreed to the placement of a feeding tube, but told the staff, ‘Don't put anything in it.’ When the staff said they could not do that, he prescribed only 200 ml. of tube feeding daily.

Id.

⁴⁹ 42 U.S.C.A. §§ 1396a-1396u (West 1992 & Supp. 1995).

⁵⁰ See, e.g., CALIFORNIA DEP't OF HEALTH SERVS., GUIDELINES REGARDING WITHDRAWAL OR WITHHOLDING OF LIFE-SUSTAINING PROCEDURE(S) IN LONG-TERM CARE FACILITIES (1987), discussed in In re Drabick, 245 Cal. Rptr. 840, 848 (Ct. App. 1988); Florida Dep't of Health and Rehabilitative Servs., PDRL Information Letter No. 14-190 (Dec. 17, 1990) (citing FLA. ADMIN. CODE ANN. rr 10D-29.108(5)(b)(3), (15) & 10D-29.110(5)-(6), replaced by FLA. ADMIN. CODE ANN. rr. 59A-4.108 & 59A-4.110 (1990)). See generally Elena Cohen, Patients’ Rights Laws and the Right to Refuse Life-Sustaining Treatment in Nursing Homes, 2 BioLaw (Univ. Publications of Am.) No. 29, at S231 (Aug. 1989) (collecting statutes and regulations of all states and D.C.).

⁵¹ See infra text accompanying note 84.

⁵² See, e.g., Kayser-Jones, supra note 31, at 474 (“NG tubes are sometimes inserted to protect the facility from receiving a citation.“).

⁵³ See McMahon v. Lopez, 245 Cal. Rptr. 172 (Ct. App. 1988). The hospital's management group and attorney were concerned about ‘doing the right thing by their patient'; they were also concerned about what position would be taken by officials from the county Department of Health Services and health officials from the state. [C]ounsel for the hospital notified [the attorney for the patient's family] that ‘appropriate’ people in the state Department of Health declined to offer any opinion on the permissibility of removal or clamping of Avis Flott's feeding tube, and would evaluate the situation only ‘after the fact.'

Id. at 175; In re Lawrance, 579 N.E.2d 32 (Ind. 1991).

[T]he home's administrator testified that Manor House was taking no position on the parents’ petition, and that the home would comply with the decision of the court. Throughout the proceeding, however, Manor House made clear its concern that the home remained subject to state and federal regulation and sanction regardless of the decision of Sue Ann's family and doctors.

Id. at 36; DeGrella v. Elston, 858 S.W.2d 698 (Ky. 1993).

This case is not in court because there is a dispute between the family members as to the patient's wishes, or between the physicians as to the medical evidence. The case is before our Court because Sue's attending physician and the nursing home fear legal sanctions, administrative, civil or even criminal, should they carry out the wishes of the patient as expressed through her mother and legal guardian. Being thus concerned, they have advised the family they require court authorization before permitting or participating in the removal of the medical device which provides Sue with nourishment and water.

Id. at 701.

⁵⁴ See supra text accompanying notes 30-37.

⁵⁵ Ironically, there are also statutory and regulatory provisions suggesting that the same law governs nursing homes and hospitals. See infra part IV. For a general discussion of the law applicable to long-term care facilities, see Kapp, Marshall B., State of the Law: Nursing Homes, 18 LAW MED. & HEALTH CARE 282 (1990)Google Scholar.

⁵⁶ 42 U.S.CA. §§ 3001-3058 (West 1992 & Supp. 1995).

⁵⁷ See infra part III.B.

⁵⁸ The number of residents of long-term care facilities whose care is paid for by Medicaid is substantially greater than the number of residents whose care is paid for by Medicare. POZGAR, supra note 38, at 320 (“Even with the wide variety of public and private sources for funding long term care, families continue to pay the largest portion of nursing home expenses—$21.1 billion. Medicaid paid $17.3 billion, Medicare $0.6 billion, and private insurance $0.4 billion.“) (citation omitted).

⁵⁹ See generally Requirements for States and Long Term Care Facilities, 42 C.F.R. pt. 483 (1991). A brief but cogent description of the administration of the Medicaid program is described in Lazarus, Tracey et al., Don't Make Them Leave Their Rights at the Door: A Recommended Model State Statute to Protect the Rights of the Elderly in Nursing Homes, 4 J. CONTEMP. HEALTH L. & POL'Y 321 (1988)Google Scholar.

⁶⁰ See, e.g., Nursing Facility Care: Provider Participation Requirements, 55 PA. CODE § 1181.41(3) (1995) (“Nursing facilities shall abide by applicable Federal, State and local statutes and regulations, including, but not limited to, Title XIX of the Social Security Act (42 U.S.C.A. §§ 1396-1396q) “).

⁶¹ See Cohen, supra note 50, at S231, S247 (collecting state statutes and regulations).

⁶² See Requirements for Long Term Care Facilities, 42 C.F.R. § 483.25(i)-(j) (1994).

⁶³ 42 U.S.C.A. § 1396r(b)(4)(A)(iv) (West 1992 & Supp. 1995).

⁶⁴ Requirements for Long Term Care Facilities, 42 C.F.R. § 483.25(i)-(j) (1994). In addition, § 483.25(g) requires that the facility “ensure that … [a] resident who has been able to eat enough alone or with assistance is not fed by naso-gastric tube unless the resident's clinical condition demonstrates that use of a naso-gastric tube was unavoidable … .” The purpose of this provision appears to be to maximize the independence of nursing home residents and does not seem to be intended to restrict the right to refuse treatment. Similarly, § 483.35, dealing with dietary standards, provides in part that “[t]he facility must provide each resident with a nourishing, palatable, wellbalanced diet that meets the daily nutritional and special dietary needs of each resident,” and does not appear to be intended to limit the right to refuse treatment. It imposes a requirement on the facility that adequate food be provided, but does not impose an obligation on the resident that the food be ingested.

⁶⁵ In virtually all states to have considered the question, a surrogate has the legal authority to withhold or withdraw life-sustaining medical treatment, which is a waiver of a patient's right to receive that treatment. See generally 1 MEISEL, supra note 7, §§ 9.I-.55 (cases); 2 id. §§ 14.l-.10 (statutes). Only in New York does a surrogate clearly lack the authority to make such a waiver. See In re Westchester County Medical Ctr. (O'Connor), 531 N.E.2d 607, 613 (N.Y. 1988) (requiring that for life-sustaining medical treatment to be forgone for incompetent patient, there must be clear and convincing evidence that patient made such a decision before losing decisionmaking capacity); cf. Cruzan v. Harmon, 760 S.W.2d 408, 423-24 (Mo. 1988) (requiring that for artificial nutrition and hydration to be foregone for incompetent patient, there must be clear and convincing evidence that patient made such a decision before losing decision making capacity; artificial nutrition and hydration is not a medical treatment).

⁶⁶ SENATE SUBCOMM. ON LONG-TERM CARE OF THE SPECIAL COMM. ON AGING, NURSING HOME CARE IN THE UNITED STATES: FAILURE IN PUBLIC POLICY, INTRODUCTORY REPORT, S. REP. NO. 1420, 93d Cong., 2d Sess. 1, 2, 7 (1974), cited in In re Conroy, 486 A.2d 1209, 1238 (N.J. 1985) (citations omitted). This report provides a detailed account of the abuses of nursing home residents. For a discussion of nursing home abuses, see generally INSTITUTE OF MEDICINE, supra note 20.

⁶⁷ SENATE SUBCOMM. ON LONG-TERM CARE OF THE SPECIAL COMM. ON AGING, 93D CONG., 2D SESS., NURSING HOME CARE IN THE UNITED STATES: FAILURE IN PUBLIC POLICY, SUPPORTING PAPER No. 1, THE LITANY OF NURSING HOME ABUSES AND AN EXAMINATION OF THE ROOTS OF CONTROVERSY 176 (Comm. Print 1974). 68 Id. at 177.

⁶⁹ See generally SENATE SPECIAL COMM. ON AGING, 99TH CONG., 2D SESS., NURSING HOME CARE: THE UNFINISHED AGENDA (Comm. Print 1986).

⁷⁰ See, e.g., Rebecca Perl, Mending the State's Worst Nursing Homes, ATLANTA J. & CONST., Oct. 4, 1992, at E-l, E-13 (reporting that Georgia sanctioned or fined almost 20% of nursing homes in past year for abuse and neglect of residents).

⁷¹ Id. (“When state inspectors showed up last year, they found there wasn't enough food to go around and what was there was often served cold.“). See generally INSTITUTE OF MEDICINE, supra note 20, at 3 & 213-14 nn.2-23 (collecting studies revealing evidence of grossly inadequate care and abuse of residents); id. at 21 (“Despite extensive government regulation for more than 10 years, some nursing homes can be found in every state that provide seriously inadequate quality of care and quality of life.“).

⁷² For a comprehensive discussion of how surveys are conducted, see POZGAR, supra note 38, at 133-37; Richard J. Howard & Stephen J. Maag, The New Requirements of Participation and Guidelines, in PROCEEDINGS OF THE NATIONAL HEALTH LAWYERS ASSOCIATION's ANNUAL PROGRAM ON LONG TERM CARE AND THE LAW § F (Nat'I Health Lawyers Ass'n ed., 1990).

⁷³ 4 2 U.S.C.A. § 1396(r)(g)(2)(A)(iii)(I) (West 1992 & Supp. 1995) (“Each nursing facility shall be subject to a standard survey not later than 15 months after the date of the previous standard survey conducted under this subparagraph. The statewide average interval between standard surveys of a nursing facility shall not exceed 12 months.“).

⁷⁴ There are two survey forms for the review of long-term care facilities for Medicare/Medicaid certification. Part A is used “for initial certifications surveys only, except” in two limited situations not relevant here. 42 C.F.R. §§ 488.100, 488.110(q) (1994). Part B is used for all other types of surveys such as those for recertification, follow up, or in response to particular complaints. Id. § 488.105.

⁷⁵ Id. § 488.100 (Code F685).

⁷⁶ The methodology for determining the sample size is dictated by id. § 488.110(d). The maximum number of residents to be surveyed is 50, regardless of the size of the facility. The identity of the residents to be surveyed is determined randomly. Nevertheless, § 488.110(d)(2) mandates that it include at least 25% of residents who fall within certain designated categories, such as those requiring tube-feeding. The rationale behind the survey's quota requirement is that, given the low number of patients within these catagories, the patients could be overlooked entirely in a purely random survey. 77 Id. § 488.105 (Codes F179).

⁷⁸ Id. (Code F180).

⁷⁹ Id. (Form HCFA-519 (2-86)).

⁸⁰ Id.; see also id. § 488.115, at 656-58 (1994) (“Evaluation Factors” for tube feedings); cf. id. § 483.25(i)(l) (quality of care standards) (“[m]aintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible … .“) This does not specifically pertain to tube feedings but does establish some criteria to judge nutritional status.

⁸¹ 42 U.S.C.A. § 3058g(a)(3)(A)(i)-(ii) (West 1992 & Supp. 1995).

⁸² Id. § 1396r(g)(5)(A)-(B) (Secretary must make public any survey regarding nursing facilities, including deficiencies, within 14 days after the information is given to the nursing facility).

⁸³ 42 C.F.R. § 488.110(a) (1994).

⁸⁴ If a deficiency immediately jeopardizes the health or safety of the residents, the state is required to “take immediate action to remove the jeopardy and correct the deficiencies … or terminate the facility's participation” in the Medicaid program. 42 U.S.C.A. § 1396r(h)(l)(h). States are specifically permitted to implement these mandates through the following remedies: denial of payment with respect to any individual resident, civil money penalties, appointment of temporary management to oversee the operation of the facility, and the authority in an emergency to close the facility. Id. § 1396r(h)(2)(A)(i)-(iv).

⁸⁵ See id. § 1396r(h); Clay County Manor, Inc. v. State of Tenn., Dep't of Health & Env't, 849 S.W.2d 755 (Tenn. 1993) (State Commissioner of Health suspended admissions to a nursing home because Medicaid survey revealed noncompliance with federal and state standards).

⁸⁶ See 42 U.S.C.A. § 1396r(h) (West 1992). If a Medicaid provider is deficient with respect to a condition of participation or an additional Medicaid requirement, it may continue to participate if it submits a plan that is designed to achieve compliance in a reasonable time. The deficiencies that can be addressed by a plan of compliance must not individually or collectively put the residents' safety in jeopardy or seriously limit the facility's ability to provide an adequate level of services. 42 C.F.R. § 488.28(a)-(b) (1994). See generally Lazarus et al., supra note 59, at 336-40.

⁸⁷ See Kayser-Jones, supra note 31, at 474. The administrative staff fear that if a patient is not taking an adequate amount of food and fluids, they may be reported. When the inspectors arrive, even if an NG tube is not warranted, they may cite the nursing home for some other violation. “It is definitely safer to insert an NG tube; [nursing homes] protect themselves, especially if they have a problematic reputation Id. at 475.

⁸⁸ See, e.g., Robinson v. Beverly Enters.-Tenn., Inc., No. 03A01-9203-CV-96, 1992 WL 200968, at *3 (Tenn. Ct. App. Aug. 21, 1992) (not reported in S.W.2d) (nursing home administrator insisted that patient be tube fed despite family's refusal, taking the position that as a nursing home it could not allow a patient to die from starvation and dehydration without an attempt to intervene.“).

⁸⁹ See, e.g., McMahon v. Lopez, 245 Cal. Rptr. 172, 174 (Ct. App. 1988) (“Citing various legal and ethical problems, and particularly problems with licensing and inspection agencies run by defendants state and county, the [skilled nursing facility] refused the request to remove the tube.“); In re Lawrance, 579 N.E.2d 32, 36 (Ind. 1991) (“Throughout the proceeding, … [the nursing home] made clear its concern that the home remained subject to state and federal regulation and sanction regardless of the decision of Sue Ann's family and doctors.“); .see supra part II.

⁹⁰ Older Americans Act, Pub. L. No. 95-478, 92 Stat. 1513 (1978) (codified as amended at 42 U.S.C.A. §§ 3001-3058 (West 1992 & Supp. 1995)). The Act applies to “older individual[s],” defined as those 60 years of age or older. 42 U.S.C.A. § 3002(38).

⁹¹ See 42 U.S.C.A. §§ 3001, 3003.

⁹² See discussion of In re Conroy, 486 A.2d 1209 (N.J. 1985), infra part V. See generally KANE & KANE, supra note 39, at 87.

⁹³ 42 U.S.C.A. § 3058g(a)(l), (3)(A).

⁹⁴ Id. §3002(13).

⁹⁵ See In re Jobes, 529 A.2d 434 (N.J.), reconsideration and stay denied, 531 A.2d 1360 (N.J.), cert, denied sub nom. Lincoln Park Nursing & Convalescent Home v. Kahn, 483 U.S. 1036 (1987); In re Peter, 529 A.2d 419 (N.J. 1987); In re Conroy, 486 A.2d 1209 (N.J. 1985); see also In re Farrell, 529 A.2d 404 (N.J. 1987) (patient was on a respirator and at home).

⁹⁶ See, e.g., Judy Holmes, The Right to Die, ASBURY PARK PRESS, Jan. 3, 1989, at CI, C3; N.J. Right-to-Die Guidelines Widely Abused: Ombudsman, TRENTONIAN, NOV. 27, 1988, at 4, 53; Robert Schwaneberg, Ombudsman Bothered by Growing Number of Senior Citizen Abuse Cases, STARLEDGER (Newark), Nov. 20, 1988, at 45.

⁹⁷ See Lazarus et al., supra note 59, at 326 n.38 (collecting statutes).

⁹⁸ See id. at 330 n.54 (collecting statutes).

⁹⁹ See, e.g., 28 PA. CODE § 211.6 (1995).

¹⁰⁰ See, e.g., ALA. ADMIN. CODE r. 420-5-10-.05(l)(c) (1995); ARIZ. ADMIN. CODE R9-10- 906(A), (B)(13) (1995); CAL. CODE REGS. tit. 22, § 70707(a), (b)(6) (1994); KAN. ADMIN. REGS. 28- 39-78(a)(2) (1993); N.Y. PUB. HEALTH LAW § 2803-c(2), -c(3)(e) (McKinney 1993); OKLA. STAT. ANN. tit. 63, § 1-1918(A), (B)(5) (West Supp. 1995); UTAH ADMIN. CODE 432-150-9(1), (4)(b) (1995).

¹⁰¹ See generally Meisel, The Legal Consensus, supra note 2, at 309. There are now approximately 100 appellate cases in 25 jurisdictions. 1 MEISEL, supra note 7, § 1.7 tbl. 1-1.

¹⁰² 355 A.2d 647 (N.J. 1976).

¹⁰³ 195 Cal. Rptr. 484 (Ct. App. 1983).

¹⁰⁴ Id. at 490.

¹⁰⁵ PRESIDENT's COMM'N FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, DECIDING TO FOREGO LIFE-SUSTAINING TREATMENT 192 n.52(1983).

¹⁰⁶ Barber, 195 Cal. Rptr. at 490.

¹⁰⁷ Id. at 490 (“Medical procedures to provide nutrition and hydration are more similar to other medical procedures than to typical human ways of providing nutrition and hydration. Their benefits and burdens ought to be evaluated in the same manner as any other medical procedure.“).

¹⁰⁸ See Gray v. Romeo, 697 F. Supp. 580, 586-87 (D.R.I. 1988); Rasmussen v. Fleming, 741 P.2d 674, 684 (Ariz. 1987); In re Drabick, 245 Cal. Rptr. 840, 845 (Ct. App.), cert. denied, 488 U.S. 958 (1988), reh'g denied, 488 U.S. 1024 (1989); Childs v. Abramovice, 253 Cal. Rptr. 530, 532 (Ct. App. 1988); McMahon v. Lopez, 245 Cal. Rptr. 172, 176 (Ct. App. 1988); Bouvia v. Superior Court, 225 Cal. Rptr. 297, 300 (Ct. App. 1986); McConnell v. Beverly Enters.-Conn., Inc., 553 A.2d 596, 603 (Conn. 1989); In re Guardianship of Browning, 568 So. 2d 4, 11 (Fla. 1990); Corbett v. D'Alessandro, 487 So. 2d 368, 371 (Fla. Dist. Ct. App.), review denied, 492 So. 2d 1331 (Fla. 1986); In re Estate of Greenspan, 558 N.E.2d 1194, 1201 (III. 1990); Estate of Longeway v. Community Convalescent Ctr., 549 N.E.2d 292, 297 (111. 1989); In re Lawrance, 579 N.E.2d 32, 40-41 (Ind. 1991); DeGrella v. Elston, 858 S.W.2d 698, 707 (Ky. 1993) (quoting NATIONAL CTR. FOR STATE COURTS, GUIDELINES FOR STATE COURT DECISION MAKING IN LIFE-SUSTAINING TREATMENT CASES 143-45 (2d ed. 1992)); In re Gardner, 534 A.2d 947, 954 (Me. 1987); In re Doe, 583 N.E.2d 1263, 1267 (Mass.), cert, denied sub nom. Doe v. Gross, 112 S. Ct. 1512 (1992); Brophy v. New Eng. Sinai Hosp., Inc., 497 N.E.2d 626, 637-39 (Mass. 1986); In re Hier, 464 N.E.2d 959, 964 (Mass. App. Ct. 1984); In re Jobes, 529 A.2d 434, 436-37 (N.J.), reconsideration and stay denied, 531 A.2d 1360 (N.J.), cert, denied sub nom. Lincoln Park Nursing & Convalescent Home v. Kahn, 483 U.S. 1036 (1987); In re Peter, 529 A.2d 419, 427-28 (N.J. 1987); In re Conroy, 486 A.2d 1209, 1236-37 (N.J. 1985); In re Requena, 517 A.2d 869, 870 (N.J. Super. Ct. App. Div. 1986); In re Clark, 510 A.2d 136, 139 (N.J. Super. Ct. Ch. Div. 1986); In re Westchester County Medical Ctr., 531 N.E.2d 607, 613 (N.Y. 1988); Wickel v. Spellman, 552 N.Y.S.2d 437, 438 (App. Div. 1990); Elbaum v. Grace Plaza, Inc., 544 N.Y.S.2d 840, 845-46 (App. Div. 1989); Delio v. Westchester County Medical Ctr., 516 N.Y.S.2d 677, 689 (App. Div. 1987); In re Grant, 747 P.2d 445, 454-55 (Wash. 1987), modified, 757 P.2d 534 (Wash. 1988); In re Guardianship of L.W., 482 N.W.2d 60, 66-67 (Wis. 1992); see also 73 Md. Op. Att'y Gen. 253, 270-71; Tex. Op. Att'y Gen. No. JM-837 (1987), available in LEXIS, States Library, TXAG File. But see Cruzan v. Harmon, 760 S.W.2d 408, 423 (Mo. 1988) (“common sense tells us that food and water do not treat an illness, they maintain a life“), aff'd sub nom. Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990), construed in In re Warren, 858 S.W.2d 263, 265 (Mo. Ct. App. 1993) (limiting Cruzan holding to termination of tubefeeding). The New York Court of Appeals also prohibited the termination of tube-feeding in In re Westchester County Medical Center, but the court's reasoning indicates that it recognized that an incompetent patient's surrogate would have to meet a formidable standard in order to terminate any life-sustaining treatment. 531 N.E.2d at 613. In contrast, Cruzan adopted a more categorical approach holding that “a guardian's power to exercise third party choice arises from the state's authority, not from the constitutional right of the ward.” 760 S.W.2d at 425.

¹⁰⁹ See, e.g., Rasmussen, 741 P.2d at 681; Barber, 195 Cal. Rptr. at 490; McConnell, 553 A.2d at 602; Browning, 568 So. 2d at 17; Lawrance, 579 N.E.2d at 40; Doe, 583 N.E.2d at 1267; Brophy, 497 N.E.2d at 627 n.2; Gardner, 534 A.2d at 954; Conroy, 486 A.2d at 1219; Requena, 517 A.2d at 870. But see Warren, 858 S.W.2d at 266 (permitting forgoing of cardiopulmonary resuscitation on basis of best interests standard, and distinguishing Cruzan, 760 S.W.2d at 460, which held that artificial nutrition and hydration could be terminated only if there was clear and convincing evidence of patient's prior competent refusal).

¹¹⁰ See COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, AM. MEDICAL ASS'N, CODE OF MEDICAL ETHICS—CURRENT OPINIONS WITH ANNOTATIONS § 2.20, at 36 (1994). Similar position statements have been issued by other medical professional organizations. See American Academy of Neurology, Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistent Vegetative State Patient, 39 NEUROLOGY 125 (1989); American Nurses’ Ass'n Comm. on Ethics, Guidelines on Withdrawing or Withholding Food and Fluid, 2 BioLaw (Univ. Publications of Am.) No. 19, at U:1123-26 (Oct. 1988), excerpted in 88 AM. J. NURSING 797 (1988); American Thoracic Soc'y, Withholding and Withdrawing Life-Sustaining Therapy, 144 AM. REV. RESPIRATORY DISEASE 726 (1991), reprinted in 115 ANNALS INTERNAL MED. 478 (1991).

¹¹¹ See Estate of Longeway v. Community Convalescent Ctr., 549 N.E.2d 292, 302-03 (III. 1989) (Ward, J., dissenting) (citing figures from a federal survey that “19.4% of all patients in Illinois' 237 intermediate care facilities and 33.8% of all residents in this State's skilled nursing homes receive tube-feeding or need assistance to obtain sustenance.“) (citation omitted); DeGrella, 858 S.W.2d at 715 (Wintersheimer, J., dissenting) (quoting figures from HCFA that “approximately 900 Medicaid residents of long-term care facilities in Kentucky receive nourishment and fluids through a feeding tube.“) (citation omitted).

¹¹² See supra part II; see, e.g., DeGrella, 858 S.W.2d at 714 (Wintersheimer, J., dissenting) (“If as a result of this decision Sue DeGrella's death ultimately follows, it will not be from being in a persistent vegetative state, nor from the effects of the vicious beating. She will die or be killed … by the inherently lethal action of withholding food and water.“); Doe, 583 N.E.2d at 1277 (O'Connor, J., dissenting) (“[B]ut for removal or non-use of the nasoduodenal tube, Jane Doe will live for the indefinite, perhaps considerable, future. Without it she will promptly die. That is proximate causation according to any recognized definition of that term.“); Brophy, 497 N.E.2d at 642 (Lynch, J., dissenting) (“[D]eath here would not be from natural causes, i.e., causes he or his agents did not set in motion, but instead, the death producing agent would be set in motion by a volitional act with the intent to cause death.“); Grant, 147 P.2d at 445 (Andersen, J., concurring and dissenting). But see McConnell, 553 A.2d at 608 (Healey, J.) (“[D]eath … will not be the result of suicide, i.e., self-inflicted, but will be the final result of her inability to receive nutrition and hydration by other than extraordinary means.“). See generally BY No EXTRAORDINARY MEANS: THE CHOICE TO FORGO LIFE-SUSTAINING FOOD AND WATER (Joanne Lynn ed. 1986); Patrick G. Derr, Why Food and Fluids Can Never Be Denied, HASTINGS CENTER REP., Feb. 1986, at 28, 28-30 (denial of food and fluids is distinguishable from denial of other kinds of treatment because it inevitably causes death); Gilbert Meilaender, On Removing Food and Water: Against the Emerging Stream, HASTINGS CENTER REP., Dec. 1984, at 11, 13; Siegler, Mark & Weisbard, Alan J., Against the Emerging Stream: Should Fluids and Nutritional Support Be Discontinued?, 145 ARCHIVES INTERNAL MED. 129, 130 (1985)Google Scholar (physicians bear “direct causal responsibility for the death of the patient” when they withdraw nutrition and hydration).

¹¹³ Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990).

¹¹⁴ Id. at 279.

¹¹⁵ Id. However, the Court also left open the door for states to limit the forgoing of artificial nutrition and hydration, declaring that “[w]e do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death … . [T]he dramatic consequences involved in refusal of such treatment” would have to be weighed against the individual's liberty interest to determine whether or not “the deprivation of that interest is constitutionally permissible.” Id. at 279-80.

¹¹⁶ In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990), aff'g 543 So. 2d 258 (Fla. Dist. Ct. App. 1989). See also In re Estate of Greenspan, 558 N.E.2d 1194 (111. 1990), discussed infra part V.

¹¹⁷ Browning, 568 So. 2d at 8-9.

¹¹⁸ Id. at 8.

¹¹⁹ Id.

¹²⁰ There is no mention of the providers’ motivation in either the court of appeal or supreme court opinions.

¹²¹ Life Prolonging Procedure Act of Florida, 1984 Fla. Laws ch. 84-58, § 1-13 (codified as amended at FLA. STAT. ANN. § 765.03(3)), repealed by Health Care Advance Directives Act, 1992 Fla. Laws ch. 92-199, § 10. Current law eliminates the prohibition on the termination of tubefeeding. Florida Health Care Directives Act, FLA. STAT. ANN. §§ 765.101-765.310 (West Supp. 1995). Another possible explanation for resorting to court action is that this might have been a contrived lawsuit; that is, the doctor and the nursing home might have believed that this was not a medically or morally inappropriate case for the termination of tube-feeding but wanted judicial permission to do so.

¹²² Mrs. Browning died before the Florida Supreme Court handed down its decision. This is not uncommon in right-to-die cases. Courts rarely declare such cases moot. The Florida Supreme Court specifically declined to dismiss the case because of mootness.

¹²³ See 2 MEISEL, supra note 7, § 11.22, tbl. 11-1 (collecting statutes).

¹²⁴ See 2 id., § 12.52, tbl. 12-1 (collecting statutes).

¹²⁵ Advance directive statutes create procedures by which individuals in possession of their decisionmaking capacity may provide for decisionmaking about their future health care should they at that time be unable to make these decisions personally. A living will is an advance directive that gives directions about the kind of medical care an individual would or (more likely) would not want and under what circumstances; a health care power of attorney appoints an individual to make health care decisions for another. A gradually increasing number of states have a single advance directive statute that includes provisions both for giving directions and for the designation of a proxy decisionmaker.

¹²⁶ E.g., DeGrella v. Elston, 858 S.W.2d 698, 706-07 (Ky. 1993); see also Gregory Gelfand, Living Will Statutes: The First Decade, 1987 Wis. L. REV. 737, 796-97 (stating that many such statutes were enacted in states that already created the same rights by judicial decision and the statutes merely provided a procedure for channeling these rights); 2 MEISEL, supra note 7. (J 10.12, at 27-28 n.100 (collecting statutes), at 29-30 n.107 (collecting cases).

¹²⁷ See, e.g., In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990) (fundamental right of self-determination controls, rather than state statute); DeGrella, 858 S.W.2d at 704, 706 (statutes are remedial rather than exclusive and are supplemental to common law rights); In re Myers, 610 N.E.2d 663, 668 (Ohio C.P. Summit County 1993) (statute may provide some guidance, but, it is not binding on the courts).

¹²⁸ 2 MEISEL, supra note 7, §§ 10.10-.12.

¹²⁹ Browning, 568 So. 2d at 4.

¹³⁰ 2 MEISEL, supra note 7, § 10.12, at 29-30 n.107 (collecting cases).

¹³¹ Id. § 10.12, at 27-28 n.100 (collecting statutes).

¹³² Oral advance directives have been given effect by a number of courts. See, e.g.. Browning, 568 So. 2d at 16 (“Oral evidence, considered alone, may constitute clear and convincing evidence.“); In re Gardner, 534 A.2d 947, 953 (Me. 1987); In re Storar, 420 N.E.2d 64, 72 (N.Y. 1981); Elbaum v. Grace Plaza, Inc., 544 N.Y.S.2d 840, 846 (App. Div. 1989); Ragona v. Preate, 6 Pa. D. & C.4th 202, 213 (C.P. Lackawanna County 1990). Other courts have relied heavily on them. See, e.g., Gray v. Romeo, 697 F. Supp. 580, 587 (D.R.I. 1988); McConnell v. Beverly Enters.-Conn., Inc., 553 A.2d 596, 605 (Conn. 1989) (oral statements of patient prior to accident that if she were ever in a persistent vegetative state she would not want her life prolonged were adequate expression of her wishes to serve as basis for termination of artificial nutrition and hydration); Delio v. Westchester County Medical Ctr., 516 N.Y.S.2d 677, 681, 691 (App. Div. 1987) (treatment ordered forgone on basis of oral statements of patient and inferences drawn from patient's lifestyle); Pocono Medical Ctr. v. Harley, 11 Fiduc. Rep. 2d 128, 130 (C.P. Monroe County, Pa. 1990); Couture v. Couture, 549 N.E.2d 571, 576 (Ohio Ct. App. 1989) (oral advance directive is a “'legally significant’ statement“).

An oral advance directive may even take precedence over a written advance directive. In Pocono Medical Center, a trial court enforced an oral instruction directive in preference to a written power of attorney which was not durable and did not specifically empower the proxy to make decisions about the principal's health care. Id. at 131-33.

No court has prohibited the enforcement of an oral advance directive simply because it was oral. The problem with oral advance directives, if there is one, is that they are more difficult to authenticate than written advance directives.

¹³³ The courts have been clear that liability should not be a serious concern for physicians and others who participate in a decision to forgo life-sustaining treatment if they act reasonably and in good faith. See, e.g., In re Farrell, 529 A.2d 404, 415-16 (N.J. 1987) (“no civil or criminal liability will be incurred by any person who, in good faith reliance on the procedures established in this opinion, withdraws life-sustaining treatment at the request of an informed and competent patient who has undergone the required independent medical examination described above“); Compare In re Conroy, 486 A.2d 1209, 1242 (N.J. 1985) (“In the absence of bad faith, no participant in the decision- making process shall be civilly or criminally liable for actions taken in accordance with the procedures set forth in this opinion.“) with id.

[Providing for complete civil and criminal immunity for guardians, physicians, hospitals, and others, who, after complying with the procedures articulated in Quintan, participate in a decision to withhold life support treatment. However, the decision- making procedure that we have outlined does not necessarily immunize its participants entirely from judicial oversight. As previously noted, the ombudsman can refer cases of questionable criminal abuse to the county prosecutor.

Id. (citing In re Quinlan, 355 A.2d 647, 671 (N.J. 1976)). The Kentucky Supreme Court has aptly summed up the matter of immunity this way:

DeGrella v. Elston, 858 S.W.2d 698, 710 (Ky. 1993). Compare Grace Plaza, Inc. v. Elbaum, 588 N.Y.S.2d 853, 857 (App. Div. 1992) (suggesting criminal liability for forgoing life-sustaining treatment without court order) (dictum) with id. at 861 (Rosenblatt, J., dissenting) (claiming that majority misreads New York precedents). See generally 2 MEISEL, supra note 7, § 10.15.

¹³⁴ See, e.g., N.J. STAT. ANN. § 26:2H65(1), (2) (West Supp. 1995) (requiring health care institutions to adopt policies and practices “as are necessary to provide for routine inquiry, at the time of admission and at … other … appropriate [times] … concerning the existence and location of an advance directive!,]” and provide “appropriate informational materials concerning advance directives to all interested patients … , to assist patients in discussing and executing an advance directive“). This requirement mirrors the Patient Self-Determination Act, part of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, §§ 4206, 4751, 104 Stat. 1388-115, -204 (codified as amended at 42 U.S.C.A. §§ 1395cc(f)(l), 1396a(a) (West 1992 & Supp. 1995)).

¹³⁵ “Surveys show that the overwhelming majority of Americans have not executed such written instructions.” Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 323 n.21 (1990) (Brennan, J., dissenting) (Emanuel, citing Linda L. & Emanuel, Ezekiel J., The Medical Directive: A New Comprehensive Advance Care Document, 261 JAMA 3288, 3288-89 (1989)CrossRefGoogle Scholar (9% of Americans execute advance directives)); AMERICAN MEDICAL Ass'N, SURVEYS OF PHYSICIAN AND PUBLIC OPINION ON HEALTH CARE ISSUES 29-30 (1988) (15% of those surveyed had executed living wills); 2 PRESIDENT'S COMM'N FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, MAKING HEALTH CARE DECISIONS 241-42 (1982) (23% of those surveyed said that they had put treatment instructions in writing); see also Gamble, Elizabeth R., Knowledge, Attitudes, and Behavior of Elderly Persons Regarding Living Wills, 151 ARCHIVES INTERNAL MED. 277, 278-79 (1991)Google Scholar (although 39 of 75 elderly persons knew about living wills, none had executed one and only two had discussed their preference for limiting treatment with their physician).

¹³⁶ Cruzan v. Harmon appears to require that there be a written advance directive in conformance with the state's living will statute for life-sustaining treatment to be forgone. 760 S.W.2d 408, 419-20 (Mo. 1988). However, In re Warren, appears to limit this requirement to feeding tubes. 858 S.W.2d 263, 266 (Mo. Ct. App. 1993). Whether or not the Missouri Supreme Court will agree with this limitation remains to be seen.

¹³⁷ In re Westchester County Medical Ctr., 531 N.E.2d 607, 612 (N.Y. 1988); see supra note 132; see also In re Storar, 420 N.E.2d 64, 72 (N.Y. 1981).

¹³⁸ See generally 1 MEISEL, supra note 7, §§ 5.12-.14.

¹³⁹ 2 id. § 14.1; see also 2 id. § 14.10, tbl. 14-1 (collecting statutes).

¹⁴⁰ The first living will statute was the California “Natural Death Act,” enacted in 1976, soon after the decision of the Quinlan case. CAL. HEALTH & SAFETY CODE §§ 7185-7195 (West Supp. 1988) (superseded).

¹⁴¹ See 2 MEISEL, supra note 7, § 11.12; see also supra part IV.A.

¹⁴² Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990).

¹⁴³ See infra notes 161-63.

¹⁴⁴ See, e.g., NEV. REV. STAT. § 449.624(3) (1991); OHIO REV. CODE ANN. § 2133.09 (Anderson 1994); Wis. STAT. ANN. § 154.03(1) (West Supp. 1994) (“[D]eclarant may not authorize the withholding or withdrawal of nutrition or hydration that is administered or otherwise received by the declarant through means other than a feeding tube unless declarant's physician advises that … the administration is medically contraindicated.“).

¹⁴⁵ See ARIZ. REV. STAT. ANN. § 36-3201(2) (1993) (defining “artificially administered” as “providing food or fluids through a medically invasive procedure“); COLO. REV. STAT. ANN. §g 15- 18-103(1.5), (7) (West Supp. 1994); CONN. GEN. STAT. ANN. § 19a-570(l) (West Supp. 1995); GA. CODEANN. § 31-32-2(6) (Supp. 1995); HAW. REV. STAT. ANN. § 327D-2 (1991); ILL . COMP. STAT. ch. 755, para. 35/2(d) (West 1992) (definition of death-delaying procedure includes intravenous feeding or medication but also states that “[n]utrition and hydration shall not be withdrawn or withheld … if [it] would result in death solely from dehydration or starvation rather than from the existing terminal condition.“); IOWA CODE ANN. § 144A.2(5) (West Supp. 1994); LA. REV. STAT. ANN. § 40:1299.58.2(5) (West 1992); ME. REV. STAT. ANN. tit. 18-A, § 5-701(4) (West Supp. 1994); MD. HEALTH-GEN. CODE ANN. § 5-601(m)(2) (1994); N.H. REV. STAT. ANN. § 137-H:2(VIII) (Supp. 1994); N.J. STAT. ANN. § 26:2H-55 (West Supp. 1995); OKLA. STAT. ANN. tit. 63, § 3101.3(6) (West Supp. 1995); 20 PA. CONS. STAT. ANN. § 5403 (Supp. 1995); VA. CODE ANN. § 54.1-2982 (Michie 1994); WASH. REV. CODE ANN. § 70.122.020(5) (West Supp. 1995); WYO. STAT. § 35-22-101(vi) (1994).

¹⁴⁶ See ALASKA STAT. § 18.12.010(c) (1994); ARIZ. REV. STAT. ANN. § 36-3262 (1993 & Supp. 1994); CAL. HEALTH & SAFETY CODE § 7186.5(b) (West Supp. 1995); COLO. REV. STAT. ANN. § 15- 18-104(3) (West 1994); CONN. GEN. STAT. ANN. § 19a-575 (West Supp. 1994); GA. CODE ANN. § 31-32-3(b) (1991 & Supp. 1994); HAW. REV. STAT. ANN. § 327D-4 (1991); IDAHO CODE § 39-4504 (1993); ME. REV. STAT. ANN. tit. 18-A, § 5-702(b) (West Supp. 1994); MINN. STAT. ANN. § 145B.04 (West Supp. 1995); NEV. REV. STAT. § 449.610 (1991); N.H. REV. STAT. ANN. § 137-H:3 (Supp. 1994); OKLA. STAT. ANN. tit. 63, § 3101.4(B) (West Supp. 1995); 20 PA. CONS. STAT. ANN. § 5404(b) (Supp. 1995); R.I. GEN. LAWS § 23-4.1 l-3(d) (Supp. 1994); S.C. CODE ANN. § 44-77-50 (Law. Co-op. Supp. 1994); S.D. CODIFIED LAWS ANN. § 34-12D-3 (1994); TENN. CODE ANN. 8 32- 11-105 (Supp. 1994); VA. CODE ANN. § 54.1-2984 (Michie 1994); WASH. REV. CODE ANN. § 70.122.030(1) (West Supp. 1995).

¹⁴⁷ See MO. ANN. STAT. § 459.010(3) (Vernon 1992).

¹⁴⁸ See ARK. CODE ANN. § 20-17-206(b) (Michie 1987); COLO. REV. STAT. § 15-18-103(7) (1987 & Supp. 1994) (subject to provisos in § 15-18-104(2.5)(a) permitting declarant to override requirement that artificial nutrition and hydration be provided for comfort); CONN. GEN. STAT. ANN. § 19a-573(a) (West Supp. 1995); FLA. STAT. ANN. § 765.101(9) (West 1995); GA. CODE ANN. § 31- 32-2(5), (6) (1991 & Supp. 1994); ILL. COMP. STAT. ch. 755, para. 35/2(d) (West 1992); IND. CODE ANN. § 16-36-4-l(2)(b) (West 1994); IOWA CODE ANN. § 144A.2(5) (West 1989 & Supp. 1994); LA. REV. STAT. ANN § 40:1299.58.2 (West 1992); MONT. CODE ANN. § 50-9-202(2) (1993); NEB. REV. STAT. § 20-408(2) (Supp. 1994); N.H. REV. STAT. ANN. § 137-H:2(II) (1990 & Supp. 1994); N.J. STAT. ANN. § 26:2H-67.b (West Supp. 1995); N.D. CENT. CODE § 23-06.4-02.4 (1991); OKLA. STAT. ANN. tit. 63, § 3101.3(6) (West Supp.1995); OR. REV. STAT. ANN. § 127.505(16) (1993 & Supp. 1994); S.C CODE ANN. §44-77-20(2) (Law Co-op. Supp. 1994); UTAH CODE ANN. § 75-2- 1103(7)(b) (Supp. 1994); VA. CODE ANN. § 54.1-2982 (Michie 1994); WASH. REV. CODE ANN. § 70.122.020(5) (West Supp. 1995); Wis. STAT. ANN. § 154.03(1) (West Supp. 1994); WYO. STAT. § 35-22-101(a)(vi) (1994); see also OHIO REV. CODE ANN. § 2133.02(A)(3)(a) (Anderson 1993) (prohibits forgoing artificial nutrition and hydration unless certain conditions are met).

¹⁴⁹ 2 MEISEL, supra note 7, §§ 11.9, 12.17. 150 2 id. § 12.26.

¹⁵¹ See 2 id. § 12.22 n.121.

¹⁵² see generally 2 id. §§ 12.23-.29.

¹⁵³ See COLO. REV. STAT. § 15-14-506(1) (Supp. 1994); CONN. GEN. STAT. ANN. § 19a-571(a) (West Supp. 1995) (must be provided unless patient is in terminal condition or permanently unconscious); HAW. REV. STAT. ANN. § 551D-2.6 (1993) (health care power of attorney form); KY. REV. STAT. ANN. §311.629(3) (Michie Supp. 1994); ME. REV. STAT. ANN. tit. 18A, § 5-702(c) (West Supp. 1994) (may be withheld or withdrawn unless optional provision regarding principal's desire to receive artificial nutrition and hydration is signed); MINN. STAT. ANN. § 145B.03(2)(b)(2) (West Supp. 1995) (if declaration states declarant's preferences regarding artificial administration of nutrition and hydration); Mo. ANN. STAT. § 404.847 (Vernon Supp. 1995) (“In the absence of a specific writing, decisions regarding nutrition and hydration must be made in accordance with state and federal law.“); Id. §404.820.1 (to withhold artificial nutrition and hydration there must be specific instructions; however, “[t]his limitation shall not be construed to require that artificially supplied nutrition and hydration be continued when, in the medical judgment of the attending physician, the patient cannot tolerate it.“); NEB. REV. STAT. § 30-3408(2) (Supp. 1994); NEV. REV. STAT. §449.830 (1991) (proxy retains power of attorney if principal has expressly requested attending physician not to withhold or withdraw in power of attorney document); N.H. REV. STAT. ANN. § 137-J:3(III) (Supp. 1994); N.Y. PUB. HEALTH LAW § 2982(2)(B) (McKinney 1993); OHIO REV. CODE ANN. § 1337.13(C), (E) (Anderson 1993); OKLA. STAT. ANN. tit. 63, § 3101.4(B) (West Supp. 1995); OR. REV. STAT. § 127.540(6), (7) (Supp. 1994); 20 PA. CONS. STAT. ANN. § 5414(a) (Supp. 1995) (nutrition and hydration must be provided to pregnant woman who is incompetent and has terminal condition or is permanently unconscious); S.D. CODIFIED LAWS ANN. § 59-7-2.7 (1993); W. VA. CODE § 16-30A-4(d)(6) (1995); Wis. STAT. ANN. § 155.20(4) (West Supp. 1994); see also Okla. Op. Att'y Gen. No. 91-2 (May 6, 1991) (although there is no health care power of attorney statute, because the state's living will statute requires the declarant specifically to state that he wishes artificial nutrition and hydration not to be administered, “[t]his precludes persons in Oklahoma from making the same requests through the execution of powers of attorney.“).

¹⁵⁴ See 2 MEISEL, supra note 7, § 14.7, at 262 n.47 (collecting statutes).

¹⁵⁵ MINN. STAT. ANN. §§ 145B.03(2)(b)(2), 145B.13(2) (West Supp. 1995); NEB. REV. STAT. §30-3418(2) (Supp. 1994); OHIO REV. CODE ANN. § 1337.13(E) (Anderson 1994); OKLA. STAT. ANN. tit. 63, §§ 3080.4(A)(1), 3101.4(B) (West Supp. 1995); OR. REV. STAT. § 127.580(l)(a) (Supp. 1994); 20 PA. CONS. STAT. ANN. § 5404(b) (Supp. 1995) (form directive); S.C. CODE ANN. § 62-5- 504(D) (Law. Co-op. Supp. 1994); Wis. STAT. ANN. § 155.30 (West Supp. 1994).

¹⁵⁶ See NEB. REV. STAT. § 30-3418(2)(b) (Supp. 1994); N.Y. PUB. HEALTH LAW § 2982(2)(B) (McKinney 1993).

¹⁵⁷ OR. REV. STAT. § 127.580(2) (Supp. 1994); accord IOWA CODE ANN. § 144B.1.3 (West Supp. 1994) (prohibits forgoing of simple nutrition and hydration [i.e. “nutrition or hydration except when they are required to be provided parenterally or through intubation“] by excluding it from definition of “health care“); ME. REV. STAT. ANN. tit. 18A, § 5-701(b)(4) (West Supp. 1994); MASS. GEN. LAWS ANN. ch. 20ID, § 13 (West Supp. 1995) (“non-artificial oral feeding“); MINN. STAT. ANN. §§ 145B.03(2)(b), 145B.13(2) (West Supp. 1995); Mo. ANN. STAT. § 404.820.2 (Vernon Supp. 1995) (ingestion through “natural means“); NEB. REV. STAT. § 30-3402(14) (Supp. 1994); N.H. REV. STAT. ANN. § 137-J: 1(11) (Supp. 1994) (“[Artificial nutrition and hydration] shall not include natural ingestion of food or fluids by eating and drinking.“).

¹⁵⁸ See KY. REV. STAT. ANN. §311.629(3) (Michie Supp. 1994); OR. REV. STAT. § 127.580(1) (Supp. 1994); S.D. CODIFIED LAWS ANN. § 59-7-2.7 (1993).

¹⁵⁹ See KY. REV. STAT. ANN. § 311.629(3) (Michie Supp. 1994); S.D. CODIFIED LAWS ANN. § 59-7-2.7 (1993).

¹⁶⁰ See ILL. COMP. STAT. ch. 755, para. 45/4-10(a) (West 1992). The Illinois Supreme Court has interpreted this provision to mean that an agent has authority to withhold or withdraw artificial nutrition and hydration even if the patient had a living will, and has stated that “the living will shall not be operative so long as the agent under the power is available to act.” In re Estate of Greenspan, 558 N.E.2d 1194, 1203‘(111. 1990); see also Mo. ANN. STAT. §404.820.4 (Vernon Supp. 1995) (before withdrawing artificial nutrition and hydration, physician must either attempt to explain to principal the intention and consequences of withdrawal in order to give patient opportunity to refuse its removal or “[i]nsert in the patient's file a certification that the patient is comatose or consistently in a condition which makes it impossible for the patient to understand the intention to withdraw nutrition and hydration and the consequences to the patient.“); NEV. REV. STAT. ANN. § 449.850.2 (1991); VA. CODE ANN. § 54.1-2984 (Michie 1994); In re Estate of Longeway, 549 N.E.2d 292 (111. 1989).

¹⁶¹ The Patient Self-Determination Act is part of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, §§4206, 4751, 104 Stat. 1388-115, -204 (codified as amended at 42 U.S.C.A. §§ 1395cc(f)(l), 1396a(a) (West 1992 & Supp. 1995)). An interim final rule for the implementation of the Act was promulgated by HCFA. See Advance Directives, 57 Fed. Reg. 8194 (1992) (effective April 6, 1992). A final rule had not yet been issued. See Unified Agenda of Regulations, 60 Fed. Reg. 23,288, 23,347 (1995) (proposed April 6, 1992) (“final rule will make minor changes to the interim rule“).

¹⁶² 42 U.S.C.A. §§ 1395cc(f)(l), 1396a(w)(l) (West 1992 & Supp. 1995).

¹⁶³ Id. §§ 1395cc(f)(l)(a)(i)-(ii), 1396a(w)(l)(A)(i)-(ii). In addition, the PSDA requires that health care providers (1) document in the patient's medical record whether or not the patient has executed an advance directive, id. §§ 1395cc(f)(l)(B),1396a(w)(l)(B); (2) “ensure compliance with requirements of State law … respecting advance directives,” id. §§ 1395cc(f)(l)(D), 1396a(w)(l)(D); and (3) conduct education for their staff and for the community about advance directives, id. §§ 1395cc(f)(l)(E), 1396a(w)(l)(E). The Act requires the states to “develop a written description of the law of the State (whether statutory or as recognized by the courts of the State) concerning advance directives” which is to be distributed to patients by health care providers. Id. § 1396a(a)(58).

¹⁶⁴ Requirement for States and Long Term Care Facilities, 42 C.F.R. § 483.10(b)(4) (1994) (“The resident has the right to refuse treatment … .“). This requirement is also reflected in the provisions of many state regulatory provisions governing long-term care facilities. See supra note 100.

¹⁶⁵ 42 C.F.R. § 488.100 (Code F557).

¹⁶⁶ See 1 MEISEL, supra note 7, § 2.6. The commentary to another subsection of § 483.10, dealing with the capacity of nursing home residents to make decisions, explicitly acknowledges “the variance in State laws concerning resident rights” on this issue, and consequently “defer[s] entirely to State law on this matter in § 483.10(a)(3).” Medicare and Medicaid: Requirements for Long Term Care Facilities, 54 Fed. Reg. 5316, 5320 (1989) (final rule with comment period). This also suggests that the draftsmen of the regulations assumed the existence of state law rights to refuse treatment.

¹⁶⁷ The recognition of this right occurs in a-section titled “Resident rights.” In a long list of rights, only the right to “participate in planning care and treatment or changes in care and treatment“ appears to be specifically limited by the regulation itself to competent patients. See 42 C.F.R. § 483.10(d)(3).

¹⁶⁸ See Medicare and Medicaid: Requirements for Long Term Care Facilities, 54 Fed. Reg. 5316, 5321 (1989) (commenting on 42 C.F.R. § 483.10(b)(4)) (proposed Feb. 2, 1989).

¹⁶⁹ See id.

¹⁷⁰ Id.

¹⁷¹ The only clear exception is Cruzan v. Harmon holding that a feeding tube could not be removed unless there was clear and convincing evidence that the patient, prior to losing decisionmaking capacity, had requested its removal. This holding is evidently based on the assumption that artificial nutrition and hydration is not a medical treatment. 760 S.W.2d 408, 424 (Mo. 1988), aff'd, Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990); accord In re Warren, 858 S.W.2d 263, 266 (Mo. Ct. App. 1993). But see Director, Cruzan v., Mo. Dep't of Health, 497 U.S. 261, 288 (1990)Google Scholar (O'Connor, J., concurring) (whether artificial nutrition and hydration techniques are medical treatment should not determine whether they must be accepted or may be forgone for they both “involve some degree of intrusion and restraint.“).

Another possible exception is In re Grant, 747 P.2d 445 (Wash. 1987), modified, 757 P.2d 534 (Wash. 1988). Its original opinion was a 5-4 holding authorizing the parents of a terminally ill child to forgo artificial nutrition and hydration. Seven months after the issuance of this opinion, Justice Durham, who had voted with the majority, issued a terse opinion in which she changed her vote, thus changing a 5-4 decision permitting the termination of tube-feeding into a 4-5 decision refusing to do so. However, the original dissenting opinion, which Justice Durham now joined, was written to express clear opposition to allowing the “patient's life to be taken by withholding intravenous nutrition and hydration or, to use less polite phraseology, to let her die of thirst or starvation.” Id. at 458.

¹⁷² 54 Fed. Reg. 5316, 5321 (1989).

¹⁷³ Id.

¹⁷⁴ See supra note 171 and accompanying text.

¹⁷⁵ See, e.g., Rasmussen v. Fleming, 741 P.2d 674 (Ariz. 1987) (living will statute); DeGrella v. Elston, 858 S.W.2d 698, 706 (Ky. 1993) (living will statute); cf. In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990). But see Cruzan, 760 S.W.2d at 420 (expressing view that living will statute is “an expression of the policy of this State with regard to the sanctity of life,” but not reaching the issue “as to whether the common law right to refuse medical treatment is broader than the Living Will statute.“). The court reached this conclusion despite the fact that the Missouri living will statute provides that “no presumption concerning the intention of an individual who has not executed a declaration to consent to the use or withholding of medical procedures” shall be created. Mo. ANN. STAT. § 459.055(3) (Vernon 1992).

¹⁷⁶ See, e.g., GA. CODE ANN. § 31-32-3(b) (Michie Supp. 1995) (by checking only the first of the three options in part 1 of the sample form provided in the statute, patient can still execute a living will even while competent). Most advance directive statutes require that the patient be incompetent or lack decisionmaking capacity to trigger the operation of the advance directive. See, e.g., ALA. CODE § 22-8A-7 (1990); CAL. HEALTH & SAFETY CODE § 7189.5(a) (West Supp. 1995); D.C. CODE ANN. § 6-2426 (1981); HAW. REV. STAT. ANN. § 327D-7 (1991); 111. COMP. STAT. ch. 755, para. 35/7 (West 1992); MINN. STAT. ANN. § 145B.05 (West Supp. 1995); NEB. REV. STAT. § 20- 408(1) (Supp. 1994); N.H. REV. STAT. ANN. § 137-H:3 (1990 & Supp. 1994); OKLA. STAT. ANN. tit. 63, § 3101.8(A) (West Supp. 1995); TEX. HEALTH & SAFETY CODE ANN. § 672.007 (West 1992); UTAH CODE ANN. § 75-2-1108 (1993); Wis. STAT. ANN. § 154.07(2) (West 1989 & Supp. 1994).

¹⁷⁷ See Mo. ANN. STAT. § 459.010(3) (Vernon 1992).

¹⁷⁸ 2 MEISEL, supra note 7, § 10.12.

¹⁷⁹ In practice health care providers (both institutions and individuals) may be more reluctant to implement an advance directive not drafted in compliance with the state's statute than to implement one that does.

¹⁸⁰ 54 Fed. Reg. 5316, 5321 (1989).

¹⁸¹ It is a virtual certainty that the case law of all states permits competent, adult persons to refuse medical treatment, and that this is required also by the federal constitution at least when there is state action. See Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 278 (1990) (“The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.“). Although it is said that the right to refuse treatment must be weighed against countervailing state interests, especially when the refusal of treatment would lead to death, when the person refusing the treatment is a competent adult, courts have been loath to find that any one or more of these state interests outweighs the individual interest in bodily integrity and autonomy. See generally 1 MEISEL, supra note 7, § 2.4.

When patients lack decisionmaking capacity, a surrogate is ordinarily empowered to make medical decisions, including consent to or refusal of life-sustaining medical treatment, on behalf of an incompetent patient. Surrogates may acquire their authority to act: by judicial appointment, 1 MEISEL, supra note 7, §§ 4.12-.19 by statute, 2 id. §§ 14.1-.10, or by customary practice, 1 id. §§ 5.10, 5.12-.14. Only a few states limit the powers of surrogates, generally to carrying out the express wishes of the patient. 1 id. § 7.5.

¹⁸² See, e.g., In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990) (holding that Florida constitutional right of privacy permits an individual to make an enforceable advance directive to forgo tube-feeding despite the living will statute's prohibition on the termination of artificial nutrition and hydration via a living will).

¹⁸³ Courts routinely state that the right to refuse treatment is not absolute. See 1 MEISEL, supra note 7, § 2.2, at 38 n.6 (collecting cases). However, as applied to competent patients, the right to refuse treatment is increasingly approaching the absolute. See Thor v. Superior Court, 855 P.2d 375 (Cal. 1993); Bouvia v. Superior Court, 225 Cal. Rptr. 297 (Ct. App. 1986); In re Dubreuil, 629 So. 2d 819 (Fla. 1993); Wons v. Public Health Trust, 500 So. 2d 679 (Fla. Dist. Ct. App. 1987), affd, 541 So. 2d 96 (Fla. 1989); St. Mary's Hosp. v. Ramsey, 465 So. 2d 666 (Fla. Dist. Ct. App. 1985); In re E.G., 549 N.E.2d 322, 328 (III. 1989) (holding that a competent minor aged 17 who is likely to die within a month without blood transfusions, but who is about 80 percent likely to achieve remission of the disease with blood transfusions and chemotherapy, may decline treatment); Norwood Hosp. v. Munoz, 564 N.E.2d 1017 (Mass. 1991); In re Peter, 529 A.2d 419, 423 (N.J. 1987) (“The patient's medical condition is generally relevant only to determine whether the patient is or is not competent, and if incompetent, how the patient, in view of that condition, would choose to treat it were she or he competent.“); In re Conroy, 486 A.2d 1209, 1225 (N.J. 1985) (“[T]he right to selfdetermination ordinarily outweighs any countervailing state interests, and competent persons generally are permitted to refuse medical treatment, even at the risk of death … .“); Fosmire v. Nicoleau, 551 N.E.2d 77, 85 (N.Y. 1990) (Simons, J., concurring) (stating that majority defines right of self-determination so broadly that for all practical purposes the right is absolute). But see Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 280-84 (1990) (holding that competent patient's right to refuse treatment not absolute but must be balanced against state interests); Donaldson v. Van de Kamp, 4 Cal. Rptr. 2d 59, 62-64 (Ct. App. 1992) (competent individual suffering from brain tumor which will be lethal within a few years has no legal right to be placed in premortem cryogenic suspension, which will cause death, nor to enlist assistance of another in ending his life); Werth v. Taylor, 475 N.W.2d 426, 429 (Mich. Ct. App. 1991) (holding blood transfusion properly authorized despite prior refusal of competent patient); In re Hughes, 611 A.2d 1148, 1151 (N.J. Super. Ct. App. Div. 1992) (blood transfusion properly authorized despite prior refusal of competent patient because “transfusion can preserve a healthy young woman's life, not prolong a painful and imminent death“); cf. University of Cincinnati Hosp. v. Edmond, 506 N.E.2d 299, 302 (Ohio C.P. Hamilton County 1986) (although an incompetent patient's family believed the patient would refuse treatment for religious reasons, the court authorized the hospital to perform blood and plasma transfusions because of “a compelling state interest in [preserving] life“); In re Estate of Dorone, 534 A.2d 452 (Pa. 1987) (“[W]here there is an emergency calling for an immediate decision, nothing less than a fully conscious contemporaneous decision by the patient will be sufficient to override evidence of medical necessity.“).

¹⁸⁴ The commentary to the regulation does state that “a resident's refusal of treatment must be persistent and consistently documented in the resident's record.” 54 Fed. Reg. 5316, 5321. See generally 42 C.F.R. § 489.102(a)(2) (1994) (providers must document in patient's medical record whether or not the patient has exercised the right to refuse treatment). However, this is applicable to the refusal of any form of treatment, not merely artificial nutrition and hydration.

¹⁸⁵ Generally speaking, the case law and/or statutory law afford close family members the authority to make decisions to forgo life-sustaining treatment on behalf of incompetent patients if the prevailing substantive standard is satisfied. 1 MEISEL, supra note 7, §§ 5.16-.20 (cases); 2 id. §8 14.1-.4 (surrogate decisionmaking statutes).

¹⁸⁶ Under In re Conroy, 486 A.2d 1209, 1226 (N.J. 1985), whether or not a patient is in a nursing home has no bearing on the substantive right to refuse treatment, including tube-feeding. However, the patient's status as a nursing home resident does affect the procedures to be followed, as discussed infra text accompanying notes 202-08.

¹⁸⁷ Other state courts have permitted nursing home residents to forgo tube-feeding. See supra note 22. However, these other cases are not discussed here because they do not address the central issue of this paper, namely whether there is anything peculiar about the law governing long-term care facilities that affects the right of a resident to forgo tube-feeding.

¹⁸⁸ In re Conroy, 486 A.2d 1209 (N.J. 1985).

¹⁸⁹ In at least one respect, Conroy is also the most important case because it involved an elderly demented patient rather than a person in a persistent vegetative state (PVS). The forgoing of artificial nutrition and hydration is less (though possibly only slightly less) controversial for patients in a PVS than for patients who are senile (whether or not the patient is in a nursing home) because PVS patients have absolutely no contact with other persons or with any other aspect of their environment. See Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 309-10 (1990) (Brennan, J., dissenting) (stating that persons in a persistent vegetative state are “devoid of thought, emotion and sensation; they are permanently and completely unconscious.“); see also Childs v. Abramovice, 253 Cal. Rptr. 530 (Ct. App. 1988).

A PVS patient has no mental functions. The eyes may be open at times, but the patient is ‘completely unconscious, I.e., unaware of him(self) or herself or the surrounding environment. Voluntary reactions or behavioral responses reflecting consciousness, volition, or emotion at the cerebral cortical level are absent.’ The patient is incapable of experiencing pain and suffering.

Id. at 531 (quoting Cranford, The Persistent Vegetative State: The Medical Reality (Getting the Facts Straight, HASTINGS CENTER REP., Feb.-Mar. 1988, at 27, 28, 31) (other citation omitted); In re Estate of Longeway, 549 N.E.2d 292, 295 (111. 1989) (“[P]ersistently comatose patients … are said to lack the capacity to feel pain and suffering, thus ameliorating concerns of a horrifying death.“); In re Doe, 583 N.E.2d 1263, 1266-67 & n.10 (Mass.), cert, denied sub nom. Doe v. Gross, 112 S. Ct. 1512(1992).

Doe displays no awareness of herself or her surroundings. Doe ‘carries out no volitional activity, nor does she show any cognitive response to any type of sensory stimulus'—including stimuli calculated to cause intense pain in a conscious individual. 10 [n.10 Although Doe responds to stimuli to her legs, the report of the examining neurologist states that in his opinion these responses are purely ‘reflexive in nature.' Doe does not react at all to ‘noxious stimuli applied to her upper limbs.’ Finally, the report noted ‘total lack of affective (emotional) change accompanying noxious stimuli applied to either the lower limbs or the upper limbs.’] She exhibits no facial expressions and does not speak. She suffers from both cortical blindness and deafness, and she cannot feel or smell. Doe does not experience hunger or thirst; she is without emotion of any sort. Though her functioning brainstem allows Doe to breathe on her own by means of a tracheostomy, she suffers from ‘a total loss of cerebral functioning.'

Id. at 1266-67 & n.10; Cruzan v. Harmon, 760 S.W.2d 408, 411 (Mo. 1988) (PVS patient is “'oblivious to her environment except for reflexive responses to sound and perhaps painful stimuli'“) (citation omitted).

¹⁹⁰ Conroy, 486 A.2d at 1217.

¹⁹¹ Id. at 1219.

¹⁹² The court set forth a tripartite, hierarchical standard to be used in such cases. If the express preferences of the now incompetent patient are known, surrogates are obliged to carry them out (the so-called subjective standard). Id. at 1230-31. If they are not known, but there is some trustworthy evidence of the patient's wishes, the surrogate may authorize the forgoing of life-sustaining treatment if the burdens of the patient's continued life with the treatment outweigh the benefits of that life for the patient (the “limited objective” standard). Id. at 1232. If there is no evidence or no trustworthy evidence of the patient's wishes about treatment, the surrogate may authorize that treatment be withheld or withdrawn on the basis of a “pure objective” standard under which the net burdens of the patient's life with treatment must markedly outweigh the benefits that the patient derives from life so that the recurring, unavoidable, and severe pain of the patient's life with the treatment would render the life-sustaining treatment inhumane. Id.

¹⁹³ N.J. STAT. ANN. §§ 52:27G-1 to -16 (West 1986 & Supp. 1994).

¹⁹⁴ In re Conroy, 486 A.2d 1209, 1240 (N.J. 1985) (quoting N.J. STAT. ANN. § 52:27G-2a). This language tracks that of the federal Older Americans Act. See 42 U.S.C. § 3022(14) (1988), stricken by Older Americans Act Amendments of 1992, Pub. L. No. 102-375, § 102(b)(3)(A), 106 Stat. 1195.

¹⁹⁵ Conroy, 486 A.2d at 1240.

¹⁹⁶ For a discussion of the various meanings of the terms competence and decisionmaking capacity and the relationship between them, see 1 MEISEL, supra note 7, §§ 4.2, 4.3, 4.5.

¹⁹⁷ Conroy, 486 A.2d at 1240.

¹⁹⁸ Id. at 1242.

¹⁹⁹ N.J. STAT. ANN. § 52:27G-7.2a (West 1986 & Supp. 1994).

²⁰⁰ Conroy, 486 A.2d at 1242.

²⁰¹ Id.

²⁰² . Id. at 1237-38:

First, residents of nursing homes are a particularly vulnerable population.… Second, nursing home residents are often without any surviving family… . Third, physicians play a much more limited role in nursing homes than in hospitals… . Moreover, physicians caring for nursing home residents generally are not chosen by the residents and are not familiar with their personalities and preferences… . Fourth, nursing homes as institutions suffer from peculiar industry-wide problems to which hospitals are less prone…. Finally, nursing homes generally are not faced with the need to make decisions about a patient's medical care with the same speed that is necessary in hospitals. Hospitals are called upon for urgent care, and treatment decisions in that context must be made quickly. Nursing homes, in contrast, care for individuals whose lives are slowly declining and for whom treatment issues arise more gradually and are foreseeable longer in advance.

²⁰³ Id. at 1237; see also 1 MEISEL, supra note 7, § 9.39.

²⁰⁴ In the Conroy context, these are the “subjective test,” the “limited-objective test,” and the “pure-objective test.” Conroy, 486 A.2d at 1240. For a more general discussion of the substantive standards that a surrogate must meet to make a decision about treatment for a patient who lacks decisionmaking capacity, see 1 MEISEL, supra note 7, §§ 7.1-.46.

²⁰⁵ Conroy, 486 A.2d at 1240.

²⁰⁶ Id.

²⁰⁷ Id. The court noted:

Id.

²⁰⁸ see id. at 1232; cf. N.J. ADMIN. CODE tit. 5, § 100-1.2 (1995) (describing abuse as: (1) imposing treatment upon a resident who has capacity to make health care decisions, after resident has made voluntary and informed choice regarding treatment; (2) providing treatment that is not medically indicated; and (3) describing withholding or withdrawing life-sustaining treatment under certain circumstances as not abuse) (section expired on June 18, 1995).

²⁰⁹ In re Peter, 529 A.2d 419, 429 (N.J. 1987).

²¹⁰ Id.

²¹¹ In re Jobes, 529 A.2d 434, 448 (N.J. 1987).

²¹² Id.

²¹³ Id.

²¹⁴ Id. at 437, 450; see also Elbaum v. Grace Plaza, Inc., 544 N.Y.S.2d 840 (App. Div. 1989).

²¹⁵ Jobes, 529 A.2d at 450 (“The nursing home apparently did not inform Mrs. Jobes’ family about its policy toward artificial feeding until May of 1985 when they requested that the j-tube be withdrawn. In fact there is no indication that this policy has ever been formalized.“); see also Gray v. Romeo, 697 F. Supp. 580, 591 (D.R.I. 1988) (nursing home “did not articulate or notify the Grays of its policy of refusing to participate in a patient's decision to terminate a G-tube's use until after [patient's husband], on behalf of [the patient], had made such a request.“); Elbaum, 544 N.Y.S.2d at 847 (App. Div. 1989)

[Defendants failed to make the facility's policy on this issue known to the Elbaum family until after the family requested the removal of the gastrointestinal tube. Thus, the Elbaum family had no reason to believe that Mrs. Elbaum was relinquishing her right of self-determination with regard to her medical care upon her admission to the facility.

Id. (citations omitted); cf. In re Requena, 517 A.2d 886, 888-89 (N.J. Super. Ct. Ch. Div. 1986) (formal hospital policy not adopted until two months after competent patient was informed that hospital policy precluded forgoing artificial nutrition and hydration), aff'd, In re Requena, 517 A.2d 869, 870 (N.J. Super. App. Div. 1986) (patient “had no notice of the regulation prior to her admission or for 15 months thereafter.“).

²¹⁶ This type of notification is now required by the Federal Patient Self-Determination Act. See Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 4206, 104 Stat. 1388-115 to 17, § 4751, 104 Stat. 1388-204 to 06 (codified as amended at 42 U.S.C.A. §§ 1395cc(f)(l), 1396a(a) (West 1992 & Supp. 1995)).

²¹⁷ Jobes, 529 A.2d at 450 (citing N.J. STAT. ANN. §30:13-5(m) (West 1981 & Supp. 1994)).

²¹⁸ See In re Farrell, 529 A.2d 404, 416 (N.J. 1987); In re Peter, 529 A.2d 419, 429 (N.J. 1987); Jobes, 529 A.2d at 451; In re Conroy, 486 A.2d 1209, 1241 (N.J. 1985).

²¹⁹ See, e.g., Brophy v. New Eng. Sinai Hosp., Inc., 497 N.E.2d 626, 639 (Mass. 1986) (“It would be particularly inappropriate to force the hospital, which is willing to assist in a transfer of the patient, to take affirmative steps to end the provision of nutrition and hydration to him.“); Delio v. Westchester County Medical Ctr., 516 N.Y.S.2d 677, 680-81 (App. Div. 1987) (“[I]f the Medical Center determines that it is unwilling to take the steps necessary to terminate the provision of nutrition and hydration to Daniel, it shall assist and facilitate Daniel's transfer to a facility willing to carry out his wishes or to his home, where his wishes may be effectuated.“). See generally 2 MEISEL, supra note 7, § 17.23.

Most advance directive statutes require the attending physician to comply with the directive or transfer the patient to the care of another physician who will. See id. § 11.18 (living wills), § 12.46 (health care powers of attorney); Lazarus et al., supra note 59, at 335 n.79.

²²⁰ See In re Requena, 517 A.2d 869 (N.J. Super. Ct. App. Div. 1986) (holding that hospital objecting to removal of feeding tube cannot insist on transfer of patient to a hospital willing to remove feeding tube if patient objects); cf. Gray v. Romeo, 697 F. Supp. 580, 591 (D.R.I. 1988) (hospital must accede to request to terminate feeding tube if transfer not possible); Childs v. Abramovice, 253 Cal. Rptr. 530, 534 (Ct. App. 1988) (“[N]o physician should be forced to act against his or her personal moral beliefs if the patient can be transferred to the care of another physician who will follow the conservator's direction.“); In re Doe, 583 N.E.2d 1263, 1270 n.17 (Mass.), cert, denied sub nom. Doe v. Gross, 112 S. Ct. 1512 (1992) (“Medical personnel or … staff members who disagree with the withdrawal of the nasoduodenal feeding and hydration tube will not be required to care for” patient), cert. denied, 503 U.S. 950 (1992); Elbaum v. Grace Plaza, Inc., 544 N.Y.S.2d 840, 848 (App. Div. 1989) (holding that if patient cannot be transferred, nursing home must permit member of its medical staff to remove feeding tube, and if none will, a physician chosen by patient's family may do so in the nursing home). See generally 2 MEISEL, supra note 7, § 17.23.

²²¹ 42 C.F.R. § 483.12(a)(2) (1994). Section 483.12(a)(2)(i)-(vi) enumerates the limited circumstances under which transfers or discharges from a nursing home can be made without the consent of the resident, namely,

• (i)The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility;

• (ii)The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;

• (iii)The safety of individuals in the facility is endangered;

• (iv)The health of individuals in the facility would otherwise be endangered;

• (v)The resident has failed … to pay … ; or (vi)The facility ceases to operate.

²²² Id. §483.12(a)(2)(i).

²²³ 54 Fed. Reg. 5316, 5321 (1989) (codified at 42 C.F.R. pts. 405, 442, 447, 483, 488, 489, 498) (proposed Feb. 2, 1989); see also 42 C.F.R. § 483.12(2)(i).

²²⁴ 42 C.F.R. §483.12.

²²⁵ N.J. ADMIN.CODE tit. 5, § 100-2, -2.3(d) (1990) (discussed in Gleason v. Abrams, 593 A.2d 1232, 1233 (N.J. Super. Ct. App. Div. 1991)).

²²⁶ Gleason, 593 A.2d at 1235.

²²⁷ In re Estate of Greenspan, 558 N.E.2d 1194, 1204 (III. 1990).

²²⁸ Id.; ILL. COMP. STAT. ch. 210, paras. 45/1-101 to 45/3-804 (West 1993 & Supp. 1995).

²²⁹ Greenspan, 558 N.E.2d at 1204; ch. 210, para. 45/1-113.

²³⁰ Greenspan, 558 N.E.2d at 1204. “Sheltered care” includes “maintenance,” ch. 210, para. 45/1-124, and “maintenance” includes “food.” ch. 210, para. 45/1-116.

²³¹ Greenspan, 558 N.E.2d at 1204. “Personal care” includes assistance with meals, ch. 210, para. 45/1-120.

²³² Greenspan, 558 N.E.2d at 1204; ch. 210, para. 45/1-117.

²³³ Greenspan, 558 N.E.2d at 1204 (citing Nursing Home Care Act of 1979, ILL. COMP. STAT. ch. 210, paras. 45/2-104(c), 45/3-201 (West 1993)).

²³⁴ Id. (citing Power of Attorney Act of 1987, I I I . COMP. STAT. ch. 755, paras. 45/4-10(a), (b)(1) (West 1992)); In re Estate of Longeway, 549 N.E.2d 292, 295-96 (III. 1989).

²³⁵ In re Lawrance, 579 N.E.2d 32 (Ind. 1991).

²³⁶ IND. CODE ANN. § 16-28-3-l(a)(3) (West Supp. 1994).

²³⁷ IND. ADMIN. CODE tit. 410, r. 16.2-1-25 (1992).

²³⁸ Id. r. 16.2-3-7(a).

²³⁹ IND. CODE ANN. § 35-46-1-4 (West Supp. 1994).

²⁴⁰ Id. §4-28-5-2(1) (West 1991), repealed by Act of Feb. 14, 1992, Pub. L. No. 2-1992, § 897, 1992 Ind. Legs. Serv. 744 (West). Even if this provision served to restrict the forgoing of artificial nutrition and hydration, the patient in Lawrance was not within its scope because she was not “incapable by reason of. .. old age .. ..“

²⁴¹ IND. CODE ANN. §§ 16-28-12-1 to -4 (West Supp. 1994).

²⁴² See 42 U.S.C.A. § 1396r (West 1992 & Supp. 1995) (noting requirements for nursing facilities).

²⁴³ Id. § 1396r(b)(4)(iv).

²⁴⁴ Id. § 1396r(c)(l)(A)(ii).

²⁴⁵ In re Lawrance, 579 N.E.2d 32, 39 (Ind. 1991).

²⁴⁶ As an example of such a case, the court cited Barber v. Superior Court, 195 Cal. Rptr. 484 (Ct. App. 1983) (dismissing indictment against physicians who terminated artificial nutrition and hydration from incurably ill patient with consent of patient's family).

²⁴⁷ As an example of such a case, the court cited Hall v. State, 493 N.E.2d 433 (Ind. 1986) (affirming reckless homicide conviction of parents who withheld medical treatment from son).

²⁴⁸ Lawrance, 579 N.E.2d at 39.

²⁴⁹ Id. (constfuing Health Care Consent Act, IND. CODE § 16-8-12-4 (repealed and superseded in substantially the same form by IND: CODE § 16-36-1-5 (1993))).

²⁵⁰ See supra text accompanying notes 116-19.

²⁵¹ In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990).

²⁵² FLA. STAT. ANN. § 765.03(3) (West 1989) (repealed 1992). This statute's prohibition on the termination of tube-feeding was eliminated by the Florida Health Care Directives Act. See FLA. STAT. ANN. §§ 765.101-.401 (West Supp. 1995).

²⁵³ Florida Dep't of Health and Rehabilitative Servs., PDRL Information Letter No. 14-190 (Dec. 17, 1990) (citing FLA. ADMIN. CODE ANN. rr. 10D-29.108(5)(b)(3), (15) & 10D-29.110(5)-(6), replaced by FLA. ADMIN. CODE ANN. rr. 59A-4.108 & 59A-4.110 (1990)); see also CALIFORNIA DEP't OF HEALTH SERVS., GUIDELINES REGARDING WITHDRAWAL OR WITHHOLDING OF LIFESUSTAINING PROCEDURE(S) IN LONG-TERM CARE FACILITIES 2 (1987) (discussed in in re Drabick, 245 Cal. Rptr. 840, 848 (Ct. App. 1988)).

²⁵⁴ These regulations replaced rules 10D-29.108 & 10D-29.110 and were recodified at FLA. ADMIN. CODE ANN. rr. 59A-4.108, 59A-4.110. The new rules contain no mention of requiring residents of long-term care facilities to accept artificial nutrition and hydration procedures.

²⁵⁵ See In re Westchester County Medical Ctr., 531 N.E.2d 607, 613 (N.Y. 1988); In re Storar, 420 N.E.2d 64, 71-72 (N.Y. 1981); see also Elbaum v. Grace Plaza, Inc., 544 N.Y.S.2d 840, 845 (App. Div. 1989); Delio v. Westchester County Medical Ctr., 516 N.Y.S.2d 677, 689 (App. Div. 1987).

²⁵⁶ Westchester, Elbaum, and Delio involved tube-feeding. The treatment at issue in Storar was blood transfusions, and its companion case, Eichner involved a respirator.

²⁵⁷ State of New York, Department of Health Memorandum: Series 89-84, Health Facilities Series NH-50, HRF-50, at 1 (Oct. 20, 1989).

²⁵⁸ See supra part IV.C.

²⁵⁹ N.Y. COMP. CODES R. & REGS. tit. 10, § 416.3 (1986) (replaced by N.Y. COMP. CODES R. & REGS. tit. 10, § 415.12 (1991)); see N.Y. State Reg. 8 (Oct. 17, 1990).

²⁶⁰ N.Y. COMP. CODES R. & REGS. tit. 10, § 81.1(c) (1992).

²⁶¹ State of New York, supra note 257, at 1.

²⁶² In re Westchester County Medical Ctr., 531 N.E.2d 607, 613-14 (N.Y. 1988) (life-sustaining medical treatment, including artificial nutrition and hydration, may be withheld or withdrawn if there is clear and convincing evidence that the patient authorized it before losing decisionmaking capacity; such evidence found to be lacking); In re Storar, 420 N.E.2d 64, 72 (N.Y. 1981) (holding in the companion case, Eichner v. Dillon, that “evidence clearly and convincingly shows that [patient] did not want to be maintained in a vegetative coma by use of a respirator.“).

²⁶³ In re Drabick, 245 Cal. Rptr. 840, 848 (Ct. App. 1988).

²⁶⁴ Id. The court noted that the regulations cited Barber v. Superior Court, 195 Cal. Rptr. 484, 489 (Ct. App. 1983), as authority for these standards.

²⁶⁵ The court, citing the CAL. ADMIN. CODE § 72315(h), stated that the obligation that 'Each patient shall be provided with good nutrition and with necessary fluids for hydration' … ‘should not be construed to be a violation’ of section 72315, subdivision (h) when the patient has been ‘reliably diagnosed as being in a comatose state from which any meaningful recovery of cognitive function is exceedingly unlikely’ and when the patient's records contain ‘clear written evidence’ of that prognosis, consultation between the physician and surrogate, consideration of the patient's expressed desires or best interests, the surrogate's determination, and the physician's order.

Drabick, 245 Cal. Rptr. at 848; see also CALIFORNIA DEP't OF HEALTH SERVS., GUIDELINES REGARDING WITHDRAWAL OR WITHHOLDING OF LIFE-SUSTAINING PROCEDURE(S) IN LONG-TERM CARE FACILITIES 1 (1987):

²⁶⁶ See Meisel, Alan, Legal Myths About Terminating Life Support, 151 ARCHIVES INTERNAL MED. 1497, 1497-98 (1991)CrossRefGoogle Scholar.

²⁶⁷ There are, of course, state statutes (advance directive statutes) that authorize forgoing artificial nutrition and hydration. See 2 MEISEL, supra note 7, §§ 11.12, 12.26. However, these statutes apply to people with advance directives, and a literal application of them might lead nursing home personnel to conclude that if a patient does not have an advance directive authorizing the forgoing of artificial nutrition and hydration, it is impermissible to forgo it. While not unreasonable on its face, this conclusion does contradict the provisions of many advance directive statutes stating that no inference is to be drawn from the absence of an advance directive that a patient wants treatment administered and contradicts the provisions in advance directive statutes that such statutes are applicable only to declarants (i.e., persons with advance directives). 2 id. § 10.13.

²⁶⁸ There are problems in the acute care setting too. Lawyers sometimes dispense extremely conservative advice that leads to such tragedies as the Linares case in Chicago. In that case, the health care facility and its legal advisors rebuffed the wishes of a father to disconnect the ventilator of his child (who was in PVS), to the point where he ultimately fended off hospital staff with a gun and disconnected the ventilator himself. See Symposium, Family Privacy and Persistent Vegetative State, 17 LAW MED. & HEALTH CARE 295 (1989); see also James Barron, Hospital Death Not Homicide, Examiner Says, N.Y. TIMES, Jan. 26, 1990, at Bl (district attorney did not prosecute family who turned off critically ill father's ventilator because “‘[l]egally, there's no way a criminal charged could be sustained here'“); Clemency Sought for 76-year-old Who Killed His Incurably 111 Wife, N.Y. TIMES, Aug. 9, 1985, at 10; Comatose Toddler Shot to Death: Heartsick Father Turns Himself In, N.Y. TIMES, June 30, 1985, at 18; Man Forces a Nurse to Let His Father Die. N.Y.

²⁶⁹ A survey conducted by the American Hospital Association's National Society for Patient Representatives found that as of 1985, 59% of hospitals had working ethics committees, double the number from 1983. Pat Milmoe McCarrick & Judith Adams, Ethics Committees in Hospitals, at ;' (Nat'l Reference Ctr. for Bioethics Literature, Kennedy Inst, of Ethics, Geo. U. 1987), updated in McCarrick, Pat Milmoe, Ethics Committees in Hospitals, 2 KENNEDY INST. ETHICS J. 285 (1992)Google Scholar; see also In re Guardianship of L.W., 482 N.W.2d 60, 74 & n. 18 (Wis. 1992) (“Increasingly, health care facilities such as hospitals and nursing homes are creating bioethics committees. In 1990, the American Hospital Association estimated that over 60 percent of United States hospitals had formed bioethics committees.“) (citing Gramelspacher, Institutional Ethics Committees and Case Consultation: Is There a Role?, 7 ISSUES L. & MED. 83 (1991)).

In order to be accredited by the Joint Commission on Accreditation of Healthcare Organizations, a health care institution must have a mechanism for facilitating the family's or legal guardian's participation in making decisions for the patient throughout the course of treatment. JCAHO Requires Hospitals to Address Ethical Issues, 7 MED. ETHICS ADVISOR 121, 123 (1991) (citing JOINT COMM'N ON ACCREDITATION OF HEALTHCARE ORGS., ACCREDITATION MANUAL FOR HOSPITALS (1992)). This mechanism might be an ethics committee or an ethics consultant. Id. at 122. This requirement applies to long-term care facilities as well as to hospitals, but whereas most hospitals seek accreditation, most long-term care facilities do not.

²⁷⁰ Glasser, Gary et al., The Ethics Committee in the Nursing Home, 36 J. AM. GERIATRIC SOC'Y 150 (1988)Google Scholar (noting that two percent of 4504 long-term care facilities sampled had ethics committees).

²⁷¹ See supra notes 258-62.

²⁷² See supra text accompanying notes 253-54.

²⁷³ See supra text accompanying notes 161-62.

²⁷⁴ The PSDA probably does not require that patients or surrogates be provided with exact copies of institutional policies relevant to medical decisionmaking rights, but their substance must be conveyed. Advance Directives, 60 Fed. Reg. 33,262, 33,269 (1995) (to be codified at 42 C.F.R. pts. 417, 430, 431, 434, 483, 484, 489) (proposed June 27, 1995) (responding to comment that health care providers should not be required to provide copies of institutional policies).