Incapacitation law called unconstitutional
Hawaii's law governing removal of feeding tubes from an incapacitated or brain-dead patient is unconstitutional, a noted bioethics professor says.
The law prevents removal of a feeding tube unless the patient gives informed consent, makes an advance health-care directive with instructions, or a guardian or designated surrogate makes the decision, said Arthur Caplan, chairman of the Department of Medical Ethics and director of the Center for Bioethics at the University of Pennsylvania.
He said the Hawaii law, if challenged, would be out of step with a U.S. Supreme Court decision in the Nancy Cruzan case that a feeding tube is a medical treatment and can be withdrawn.
Because of the law, Caplan said in a recent interview, "it is very important in Hawaii that people fill out a living will (advance health-care directive) or designate someone to make decisions."
James Pietsch, director of the University of Hawaii Elder Law Program, agreed that "in limited circumstances" Hawaii's law might be unconstitutional. "The process in Hawaii is different than in any other state," he said.
In many states, he said, the spouse or next-of-kin can make life-support decisions for a mentally incapacitated person if there is no advance directive, designated surrogate, agent or durable power of attorney.
In Hawaii, the attending physician or designee gather together interested persons defined in the law, such as a spouse, adult children or grandchildren, siblings, and close friends, and they select a surrogate by consensus, Pietsch said.
Anyone in the group who disapproves of the surrogate selected or the surrogate's decision can go to court and initiate a guardianship proceeding, he said.
"Here it gets squirrelly," Pietsch said, because the surrogate not designated by the patient can make all decisions except whether artificial nutritional and hydration can be withheld or withdrawn.
That can only be done if the primary physician and second independent physician certify that tube-feeding is "merely prolonging the act of dying and the patient is highly unlikely to have any neurological response in the future," Pietsch said, quoting the law.
Pietsch said he has hoped over the years that the Legislature would clarify what that means. "Does that mean persistent vegetative state? Does that mean irreversible coma?"
Both Caplan and Pietsch emphasized the importance of young people, as well as those older, making their wishes known about extraordinary life-support measures if they were incapacitated.
Terri Schiavo and Nancy Cruzan -- two nationally controversial cases -- were both under age 30 when they were stricken.
Schiavo was 26 when she collapsed in her home in 1990 with heart failure, leading to severe brain damage. Her feeding tube was disconnected March 18, 2005, in a Florida nursing home because her husband, Michael Schiavo, said his wife wouldn't want to live in a "persistent vegetative state." Her parents, the courts, Congress and the White House tried to intervene.
Cruzan, of Missouri, was in an automobile crash in 1983. Like Schiavo, she was in a persistent vegetation stage. Her parents in 1987 asked for a court order to remove the life support. The case went to the Missouri and U.S. supreme courts before tubal feeding could be stopped in December 1990, and Crizan died at age 33.
Caplan, who was a speaker at the second Hawaii BioScience Conference held by the University of Hawaii John A. Burns Medical Center in June, said he was "very surprised and troubled" at the uproar over the Schiavo case because he thought agreement had been reached about who speaks for patients who can't speak for themselves: spouses first, then adult children, then parents. That hierarchy is followed in hospitals, he said.
He said people don't have to go to an attorney but can just write their wishes on a piece of paper about life support, and designate someone to make decisions for them. It should be witnessed and they should update it every two years. "And when you designate a person, tell them," he said.
For more information about health-care decisions and a sample advance health-care directive, call the University of Hawaii Elder Law Program at 956-6544, or see www.hawaii.edu/uhelp
. If you use the form, advises director James Pietsch, white-out "sample" and the page number.