Refusing artificial nutrition and hydration: does statutory law send the wrong message?

Ethical consensus and appellate court decisions view artificial nutrition and hydration (ANH) as medical treatment that can be refused like other treatments. However, advance directive statutes may produce obstacles for refusal of ANH, as distinct from other life-sustaining treatments, in patients who lack capacity. This paper reviews state statutes and appellate case law regarding medical decision making for patients who lack decisional capacity. Twenty states (39%) have one or more explicit statutory provisions delineating a separate and more stringent standard for ANH refusal. These standards include higher evidentiary standard; requirement for specific preauthorization, qualifying medical conditions, second medical opinion, or judicial review; refusal not permitted; refusal not permitted if death would result from "starvation" or "dehydration"; and previous law with higher standard applies to old documents. In 11 of these states and in eight others, statutory law contains language that could be misinterpreted, implying, but not rising to, an explicitly higher standard. Four appellate decisions departed from the judicial consensus that ANH can be refused like other treatments, but subsequent court decisions or legislative enactments reduced or eliminated their impact. Legislators and the courts should ask whether higher standards for ANH refusal are appropriate in light of case law authority that ANH should not be treated differently and in light of statutory language that preserves those common law rights. These higher standards may make it more difficult in certain states to refuse ANH for patients who lack capacity or place a burden on good practice by making providers fearful of the law.