Vol. 83, No. 5, May 2010
The decision to withhold or withdraw a feeding tube from a person who cannot eat or drink carries life or death consequences. If a person is in a persistent vegetative state, Wisconsin generally permits a surrogate decisionmaker to withhold artificial nutrition and hydration if doing so is in the patient’s best interests.1 Some people plan ahead for such an event by signing a power of attorney for health care (POAHC), which becomes activated when the person is incapacitated.2 If the person has checked “yes” in the POAHC’s “feeding tube” section, a health care agent “may have a feeding tube withheld or withdrawn ... unless [the principal’s] physician has advised that, in his or her professional judgment, this will cause [the principal] pain or will reduce [his or her] comfort.”3
But what about persons who are not in a vegetative state and need a feeding tube because they have dementia as a result of a condition such as Alzheimer’s, which has robbed them of the ability to swallow? Such patients may be fully conscious and enter the hospital capable of walking, talking, smiling, and still interacting with their grandkids or great-grandkids. Does Wisconsin law permit agents and physicians to withhold a feeding tube under such circumstances? Do persons who checked “yes” in the POAHC’s feeding tube section really want to die in that situation? Have attorneys advised their clients about these problematic issues before they sign a standard POAHC document or added language to the POAHC clarifying their clients’ intent?
Overview of Law
The applicable POAHC statute, Wis. Stat. section 155.20(4), contains both permissive and mandatory terms and states in relevant part: “A health care agent may consent to the withholding or withdrawal of a feeding tube for the principal if the power of attorney for health care instrument so authorizes, unless the principal’s attending physician advises that, in his or her professional judgment, the withholding or withdrawal will cause the principal pain or reduce the principal’s comfort. ...” (emphasis added).
Based on Wisconsin’s paramount interest in preserving life and prohibiting euthanasia, however, Wisconsin appellate courts have never permitted a feeding tube to be withheld from a person who was not in a persistent vegetative state.4 Further, it has not been shown that the Wisconsin Legislature even intended section 155.20(4) to apply to nonvegetative persons.5 The amendment of other parts of chapter 155 without modification of section 155.20(4) may be an acceptance of the decisions limiting the withholding of feeding tubes to persons in a vegetative state.6
Feeding tube decisions also may have civil and criminal ramifications for a POAHC agent or a physician.7 An Alabama court found that a surrogate decisionmaker’s withdrawal of a feeding tube from a patient with dementia constituted criminally negligent homicide, because there was no statutory right to withdraw the tube.8
Ethical, Moral, and Religious Division
The decision to sustain life by means of artificial nutrition and hydration is a highly emotional issue that divides people worldwide.9 “Right to life” proponents may view the use of a feeding tube as a moral, ethical, or religious obligation. “Right to die” advocates believe that the freedom to die with dignity and without unwanted medical intervention is fundamental.10
The feeding tube issue received global attention in 2004 when Pope John Paul II announced that Catholics have a moral obligation to feed patients in a vegetative state.11
Religious convictions can affect feeding tube decisions. In one case, a New York court found that an incompetent patient with dementia who was a devout Catholic had revoked her living will/power of attorney, thereby overriding any consent to withhold a feeding tube.12 In another case involving a Jewish patient with Alzheimer’s disease, a New York court engaged in a lengthy discussion of Judaism and how “respectable authorities deem any active and deliberate hastening of death as sheer murder.”13
Medical Community Divided as Well
Medical experts have testified that the insertion of a feeding tube (also referred to as a percutaneous endoscopic gastrostomy or PEG tube) “is a simple surgical procedure that causes little risk, but is vitally necessary.”14 There is widespread use of feeding tubes with patients with dementia, a condition that affects the brain and causes a progressive loss of cognitive functions.15
But opinions are divided as to whether tube feeding is highly effective. One source states: “The largest observation reported to date, comprised of over 81,000 patients who received either [PEG] or surgical gastrostomy, documented a 1-month mortality of 24%. Median survival was just over 6 months; 1-year survival was 38%.”16
The court decisions gaining the most media attention have involved the withdrawal of feeding tubes or other medical care from persons in a vegetative state.17
In In re Guardianship of L.W., the Wisconsin Supreme Court ruled that a guardian could consent to the withdrawal of artificial nutrition and hydration from an incompetent patient in a persistent vegetative state.18 But the court “stress[ed] that [its] opinion is limited in scope to persons in a persistent vegetative state” because such patients are “on a completely different footing than patients with other disabilities.”19
In situations in which an incompetent patient is conscious, however, courts have resolved the issue in a dramatically different fashion. In general, courts strictly require a surrogate decisionmaker to show “clear and convincing” evidence of the incompetent person’s desire to have a feeding tube withheld under the circumstances. If the patient’s desires are not clearly stated, courts deem the continuation of life to be in the patient’s best interests as a matter of law.20
In Edna M.F., decided in 1997, the Wisconsin Supreme Court refused a guardian’s request to withhold a feeding tube from an incompetent patient with dementia who was not in a persistent vegetative state. The court broadly declared: “[T]he threshold at which this court will authorize the withholding or withdrawal of life-sustaining medical treatment is the point at which the trained medical doctors diagnose the patient as being in a persistent vegetative state.”21 A feeding tube can only be withheld if the guardian “can demonstrate by a preponderance of the evidence a clear statement of [the ward’s] desires in these circumstances.”22 The California Supreme Court has equated Edna M.F.’s “clear statement” requirement with the heightened “clear and convincing evidence” standards discussed in other cases.23 Because the patient in Edna M.F. did not execute a POAHC, however, the Wisconsin Supreme Court did not fully examine section 155.20(4).
Terms of Statutorily Authorized POAHC
Mandatory Use of Feeding Tube. Under the statutory POAHC’s plain terms, an agent is prohibited from withholding a feeding tube if the patient’s physician advises this will cause the patient pain. If a patient with dementia is fully conscious, common sense might suggest that the patient would feel some pain or discomfort from dying as a result of starving and dehydration. That is what the court noted in Edna M.F.: “Edna M.F. is not in a persistent vegetative state and could therefore likely feel the pain and discomfort of starving to death.”24
A critical problem arises, therefore, if the physician of a conscious dementia patient opines that starving to death will not cause the patient any pain or discomfort, thereby nullifying the POAHC agent’s statutory duty to insert a feeding tube. Because the patient’s life may ride on a single physician’s stated opinion, the agent in that instance should consider obtaining an independent opinion. In Edna M.F., Justice Bablitch objected to the lack of safeguards for ensuring the accuracy of the determination as to whether a patient is in a vegetative state and, as a matter of law, would require two independent medical opinions.25 Other courts are in accord.26
Gary A. Magnarini, Marquette 1988 cum laude; Cambridge Univ., England, LL.M. – international law, is a partner at Hicks, Porter, Ebenfeld & Stein P.A. in Miami, Fla., practicing primarily in civil appeals. He clerked for the late Chief Justice Nathan S. Heffernan of the Wisconsin Supreme Court.
If it is truly impossible to determine whether a conscious patient with dementia feels pain or discomfort in starving or dehydrating to death,27 courts might rule that a POAHC agent is barred from withholding a feeding tube from a conscious patient in light of Wisconsin’s interest in preserving life.28
Permissive Withholding of Feeding Tube. By marking “yes,” the principal intends to grant authority for withholding of a feeding tube under some sets of circumstances. The problem is that the general public appears to be unaware that dementia can cause a loss of the ability to swallow, and more importantly, that a person can be in such a condition and still be walking, talking, feeling, and smiling.29 The average person might think that feeding tube decisions only come into play when the patient is a “vegetable” or in a coma.30
Although a competent adult generally has the right to refuse medical treatment, when that person becomes incompetent and thereby falls under the state’s parens patriae protection, the whole issue is whether the person had shown a clear intent to refuse medical care under the particular circumstances at hand.31
On its face, a standard POAHC may fail to meet the “clear statement” test with regard to conscious patients. Various studies also cast doubt on whether advance directives are consistent with patients’ desires under particular health-care scenarios.32
Because feeding tube decisions have irreversible consequences, Wisconsin courts will likely strictly apply Edna M.F.’s “clear statement” requirement to POAHC decisions.33 Courts do not allow parol evidence to rewrite the terms of a POAHC document.34
Thus, if a principal wants to give the agent authority to withhold a feeding tube in a situation in which the principal is conscious, the principal should clearly spell that out in the add-on “special provisions” section of the POAHC document.35
Alternatively, POAHC instruments generally could be interpreted as granting the agent permissive authority to withhold a feeding tube from a conscious patient if the patient had made a clear statement of such intent outside the POAHC (either orally or in a separate document). Generalized statements regarding not wanting to be kept alive as a “vegetable” would undoubtedly not be deemed sufficient.36 Nor would the courts likely accept an agent’s “gut feeling” prediction.37
Moreover, according to Edna M.F., absent compliance with the “clear statement” requirement, “quality of life” assessments are irrelevant and the “presumption that continuing life is in the best interests of the [patient]” remains unrebutted.38 In this regard, however, the following POAHC provision is problematic: “In the absence of a specific directive by the principal or if the principal’s desires are unknown, the health care agent shall, in good faith, act in the best interests of the principal.”39 If the principal’s desires are “unknown,” then, logically, the “clear statement” requirement could not be met. Further, courts “have never decided it is in the best interests” of a nonvegetative person to withhold life-sustaining medical care.40
On the other hand, if courts determined that a POAHC agent could withhold a feeding tube from a conscious dementia patient based on the agent’s “best interests” assessment, the agent would surely have to focus on the interests of patient herself and not on those of the agent, the hospital, or the attending physician. POAHC agents may be tempted to think of their own hardships. Agents may feel worn out and trapped by the responsibility of caring for the patient. More insidious self-interest, such as monetary gain, is also a possibility. In upholding liability for the withdrawal of a feeding tube, an Alabama court noted that the guardian was the sole beneficiary under the ward’s will as well as the beneficiary of various financial instruments.41
POAHC agents also may have to guard against any perceived pressure exerted by hospitals or physicians who might advocate against a feeding tube based on their own financial interests or subjective views. Enormous amounts of money are spent on end-of-life care and there is a constant threat of unreimbursed costs.42 Courts have rejected decisions to withdraw feeding tubes even in situations in which the patient’s physicians and the hospital ethics committee have unanimously voiced approval.43
Civil, Criminal Liability
The Wisconsin Legislature has granted immunity for civil and criminal liability for POAHC participants for various enumerated actions.44 But health-care facilities and providers may potentially still be exposed to liability for the following (nonlisted) acts: 1) representing that withholding a feeding tube will not cause a dementia patient pain or discomfort in starving or dehydrating to death; or 2) giving incorrect or insufficient information to the health-care agent, causing the agent to erroneously believe that he or she had the legal right to withhold a feeding tube or that it was in the best interests of a patient to do so.45
POAHC agents have been granted broader immunity.46 But agents are still on the hook for “bad faith” actions. An agent could be exposed to liability for withholding a feeding tube if the motivating factor was the agent’s self interests or if the agent knowingly ignored the patient’s stated desires. Even after a patient is deemed incapacitated the agent still has a duty to “try to discuss with [the patient] any specific proposed health care if [he or she is] able to communicate in any manner, including blinking [his or her] eyes.”47
Although there are sound policy reasons not to make health-care agents and providers liable for every lapse in judgment, the decision to withhold a feeding tube under a POAHC should be governed by exacting standards and procedures. For those entrusted to protect the well-being of persons who are legally incompetent, whatever their age, the failure to act in good faith may have serious consequences.48
Judicial Review Problems
The complex issues surrounding the withholding of a feeding tube may spring up in a heartbeat. When a patient with dementia loses the ability to swallow, death can come quickly, within a matter of days. Moreover, other parties and next-of-kin interested in ensuring that the patient’s wishes are honored or that the law is followed may be excluded from the decisionmaking process between the POAHC agent and health-care providers. If the agent or health-care professionals have acted in bad faith or simply misunderstood the law, there may be no time for anyone to present the dispute to a court.49
Wisconsin lawyers need to make sure people know what they are doing when they sign a POAHC. The need to tube feed patients with dementia will only explode with the aging of the baby-boom generation.50 In light of the case law, a principal would be well-served to clearly articulate in the special provisions section of the POAHC whether or not the agent is permitted to withhold a feeding tube if the principal is conscious. Until the legislature or courts clarify the law, lawyers should do everything possible to effectuate their clients’ informed wishes under a POAHC.