Testimony on Senate Bill 2320 (Regarding Withdrawal of Nutrition and Hydration from Incapaciated Patients)

To: Senate Human Services Committee
From: Christopher T. Dodson, Executive Director
Subject: Senate Bill 2320 (Relating to Withdrawal of Nutrition and Hydration from
Incapacitated Persons)
Date: February 8, 1999

The North Dakota Catholic Conference supports Senate Bill 2320 to provide consistent safeguards for incapacitated persons.

Some background on this legislation will help shed light as to why we need this bill. In 1989, the state passed the Uniform Rights of the Terminally Ill Act (Chapter 23-06.4), permitting written declarations (living wills) for the care of terminally ill incapacitated persons. In 1991, the state passed an act to allow durable powers of attorney for health care (Chapter 23--06.5). Also in 1991, the state passed Section 23-12-13, providing a list of persons authorized to provide informed consent to health care decisions for incapacitated or minor patients.

In 1993, working through the North Dakota Consensus Council, various interested parties, including the North Dakota Catholic Conference, worked on legislation to address inconsistencies or unanswered questions concerning the three legislative schemes. Among the provisions passed in 1993 was an amendment to the living will statute providing that, absent a written declaration concerning the withdrawal of nutrition and hydration, nutrition and hydration could be withdrawn if the attending physician determines that the administration of nutrition or hydration is inappropriate because the nutrition and hydration cannot be physically assimilated by the patient or would be physically harmful or would cause unreasonable pain to the patient. (N.D.C.C. § 23-06.4-06.1.)

These safeguards serve an important purpose. When an incapacitated patient has not made a valid statement regarding nutrition and hydration the state has a legitimate interest in protecting against inappropriate removal of nutrition and hydration. The safeguards do not prohibit the removal of nutrition and hydration, but carefully balance the need to protect the incapacitated patient with the health
of the patient should the burden of receiving nutrition and hydration outweigh any benefits.

It was the belief of the North Dakota Catholic Conference and several other parties involved in drafting the legislation that this section provided the only conditions for removing nutrition and hydration if no written directive permitting such withdrawal existed. This last summer, it came to the attention of the North Dakota Catholic Conference that some persons interpreted the statutes differently. To get some clarification, the Attorney General was asked to provide an opinion on the matter. The Attorney General issued her opinion on January 6, 1999.

The Attorney General's opinion is that the provision passed in 1993 (Section 23-06.4-06.1) provides the requirements for withdrawing nutrition and hydration only for terminally ill patients who have executed a living will but made no statement in that living will regarding nutrition and hydration. The section does not apply to other situations.

The purpose of SB 2230 is to apply the safeguards to other situations. As it stands now, for patients without a living will there is:

• No requirement that the patient be terminally ill;
• No requirement that nutrition and hydration (a) can no longer be physically assimilated,
(b) be physically harmful, or (c) cause unreasonable physical pain;
• No requirement that patient be in a persistent vegetative state;
• No requirement that incapacity be considered permanent or even long-term; and
• If the patient is a minor for whom informed consent is given, no requirement that the
patient be incapacitated.

Attached to this testimony is a chart showing how the conditions for withholding or withdrawing nutrition and hydration differ depending upon the circumstances of the patient.

It should be noted that the Attorney General based her opinion that the safeguards did not apply to non-living will situations on construction on the statute. The opinion recognizes that the U.S. Supreme Court held in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990), that states can establish safeguards by restricting when nutrition and hydration can be withdrawn. Moreover, if safeguards, like those in Section 23-06.4-06.1, could not apply to non-living will situations for constitutional reasons, Section 23-06.4-06.1 itself would not withstand constitutional scrutiny. The Attorney General, however, did not question the constitutionality of Section 23-06.4-06.1.

Senate Bill 2230 addresses the problem by repeating the safeguard provision passed in 1993 in the durable power of attorney for health care statute and the informed consent statute. As a result, all incapacitated persons that did not make a living will statement regarding nutrition and hydration would have the same protection under the law. This has the added benefit of providing some consistency and less confusion for health care providers.

We recognize that arguments could be made that the safeguards are too restrictive or too weak. We believe that those arguments that we should address at a slower pace through the newly formed task force on end-of-life care. Meanwhile, we feel that the state must establish consistent safeguards according to the criteria set in 1993. Without those safeguards, the law provides some persons with less protection from abuse than others. This is contrary to the intent of the legislation passed in 1993 and contrary to society's duty to protect the life and dignity of the most vulnerable among us.

We urge a Do Pass recommendation.