The Ethics of Food and Drink

Original Article

Should the law compel nursing homes to starve certain Alzheimer’s patients to death? This is not an alarmist fantasy, but a real question, soon to be forced by advocates of ever-wider application of assisted euthanasia. The intellectual groundwork is already being laid for legislation or court orders requiring nursing homes, hospitals, and other facilities to withhold spoon feeding from dementia patients who, though they take food and drink willingly, once requested the withholding of life-prolonging meas-ures in an advance medical directive.

Consider the Bentley case in Canada. A lawsuit was filed in 2013 in British Columbia by the family of an Alzheimer’s patient named Margot Bentley. Bentley had signed an advance directive instructing that she be refused life-sustaining treatment—or be euthanized—if she became unable to recognize her children.

Bentley is now in that lamentable condition. But she doesn’t need life-sustaining treatment like a respirator or feeding tube, and she willingly takes food and water by mouth. Moreover, euthanasia is illegal in Canada. Thus, there is no legal way of making sure she dies immediately.

Bentley’s family thinks this is unjust and asked a court to order her nursing home to starve her to death. The trial court refused, in part because Bentley’s advance directive did not specifically reject spoon-feeding. The case is now on appeal. Of all the current litigation aimed at undermining the sanctity of human life, this may be the most dangerous. If successful, it would open the door to what I call VSED-by-proxy. Let me explain.

Suicide itself is not illegal, and patients have long enjoyed the right to refuse medical treatment, even if their refusal hastens death. For decades, moreover, courts have deemed artificial nutrition and hydration to be medical treatment. Removing or withholding unwanted feeding tubes and respirators is a routine part of contemporary medical practice. But euthanasia advocates want more. They argue that people who don’t require medical treatment to remain alive also have a “right to die.”

Already, Oregon, Washington, and Vermont allow assisted suicide: Doctors may prescribe lethal drugs for patients expected to die within six months. Some activists urge that elderly people who are “tired of life,” those with disabilities, and the chronically ill should also have a legal means of obtaining help to end their lives. Here’s how the assisted-suicide advocacy organization Compassion & Choices makes the case in one of its booklets:

Some call us because they feel overwhelmed by the symptoms of chronic and progressive illnesses that fill their days with misery and suffering. There are also those who may not be seriously ill but are simply “done.” After eight or nine decades of life, they want information about ways to gently slip away in a peaceful and dignified manner.

Regardless of their clinical circumstances, these individuals share a common desire to maintain autonomy over their own end-of-life decisions. They want to die as they have lived, making the important decisions that affect their lives with collaboration and support from trusted healthcare providers, family members and other caregivers.

People like these are prime candidates for suicide by voluntary starvation, known in euthanasia parlance as “voluntarily stopping eating and drinking” (VSED). A person commits VSED by refusing all sustenance. To ensure that death is not impeded, the suicidal person leaves instructions explicitly refusing any medical intervention to nourish them. Because VSED can cause agonizing symptoms, advocates suggest that the suicidal person find a sympathetic doctor or hospice to provide pain relief.

(It is important to distinguish here between VSED and the point in the process of dying when a patient naturally stops taking food and drink. This is not suicide, and starvation is not the cause of death. Indeed, in such cases it is medically inappropriate to force food upon the patient.)

But what about a Margot Bentley —someone suffering from dementia, who eats and drinks willingly, but who once signed an advance directive calling for the withholding of treatment? Some bioethicists—reflecting the mix of utilitarianism and autonomy-worship that predominates in the field—have leapt to support VSED-by-proxy. Writing in the May-June 2014 Hastings Center Report, Paul T. Menzel and M. Colette Chandler-Cramer argue for allowing people to use an advance directive to order themselves starved if they become incompetent:

Such directives are .  .  . arguably already legal. They follow logically from the intersection of two existing legal rights: directives for refusing life support and VSED. The principle behind [advance medical directives] is that people do not lose their rights when they become incompetent; someone else just has to exercise those rights for them.

The driving element behind VSED is that forcing people to ingest food is as objectionable an intrusion on bodily integrity, privacy, and liberty as imposing unwanted medical treatment. Thus, if incompetent people do not lose their rights to refuse life-saving treatment, then people do not lose their right to VSED when incompetent either.

This is rank sophistry. Even today, the courts do not deem spoon-feeding to be medical treatment. It is basic, humane care—no different ethically from turning a patient to prevent bed sores or providing hygiene. Just as an advance directive instructing that a patient not be kept clean should be disregarded, so should an order to starve a patient.

Second, VSED is suicide. Legally requiring nursing homes to commit VSED-by-proxy would be forcing them to kill—and to kill cruelly. A legal regimen that did this would drive many doctors and nurses out of medicine.

Third, even in the states where assisted suicide is legal, the person being helped by a doctor to die has to be capable of making decisions. Demented patients are incompetent.

Finally, in cases such as Bentley’s, the patient is not being force-fed. She is taking nourishment willingly.

Some ethicists are dismissing this last objection. Thaddeus Mason Pope in the Spring 2014 Journal of Clinical Ethics argues that Margot Bentley should be starved because she is now incompetent and thus is legally unqualified to change her mind about dying.

It seems remarkable to hold that, when a spoon or glass is pressed to the lips of someone with severe dementia, the mere opening of her or his mouth evidences decisional capacity to continue eating and drinking. Mrs. Bentley may have the capacity to “communicate a choice.” But this is just one component of capacity. She does not understand the relevant information, does not appreciate the situation and its consequences, and cannot reason about treatment or care options.

In other words, Bentley should not be allowed to thwart her previous instruction by willingly taking nourishment. If Pope’s view prevails, an instruction to be starved, signed while the patient was competent, would prevail even over an incompetent patient’s begging for food—a horror that actually happened in a tube-feeding case in Florida.

As if such advocacy weren’t alarming enough, it must be noted that patients deemed candidates for VSED-by-proxy are among the most expensive for whom to care—this in a time of intense government efforts to control medical costs. The financial pressures all argue for euthanasia. Indeed, the advocates’ agenda may already have quietly penetrated the culture of the medical technocracy.

A patient’s chart informs the attending medical staff what life-sustaining care to provide or withhold. This information is contained in the Physician’s Order for Life-Sustaining Treatment (POLST) form, and some state forms may already tacitly authorize the withholding of spoon-feeding.

California’s POLST, for example, in Section C, “Artificially Administered Nutrition,” instructs whether, and for how long, to use a feeding tube. But it also states: “Offer food [to the patient] by mouth if feasible and desired.”

What does that mean? If desired by the patient now? If desired by the patient in an advance directive? If desired by the family or the care facility? Is it possible that the words “if desired” are setting the stage for allowing the withholding of spoon-feeding as a matter of policy? Hawaii’s form has similar language.

If the law ever allows patients to order caregivers to starve them to death, the next step will surely be to legalize lethal injections for such patients. After all, why force anyone to undergo a slow and potentially agonizing death by VSED or VSED-by-proxy when he or she can be dispatched quickly? Euthanasia pursuant to advance directive is already practiced in the Netherlands and Belgium.

It is possible that this has been the stealth goal from the time advocacy for removing feeding tubes from incompetent patients began decades ago—and that now, with the open advocacy of VSED and VSED-by-proxy, the camouflage is coming off.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.